Preview

BRICS Law Journal

Advanced search

Transnational Contracts and Their Performance During the COVID-19 Crisis: Reflections from India

https://doi.org/10.21684/2412-2343-2020-7-3-52-80

Full Text:

Abstract

The outbreak of COVID-19 has severely impacted the performance of contracts across the globe. In some situations, the outbreak may render the performance of contracts impossible as a result of governmental restrictions in the form of national lockdowns to curb the spread of the virus. In other situations, the pandemic may adversely impact the execution of contractual obligations by dramatically affecting the price of the performance and, thus, resulting in hardship or commercial impracticability, while in certain situations the pandemic may be legally construed to not affect the performance of a contract. In domestic contracts, the consequences of such non-performance would depend on the principles of national law. In comparison, agreements with a foreign element (international contracts) are likely to increase the complexity of deciding claims arising from the non-performance of contracts due to the COVID-19 outbreak. The rights and liability of the parties would chiefly depend on the law that will govern the agreement – which differs across the globe. Some contracts would include a force majeure clause to exonerate the parties from performance on the occurrence of an event such as a pandemic. The courts’ interpretations of such force majeure clauses similarly differ across the globe. The laws of some countries would excuse the parties from performing their contractual obligations even if the pandemic resulted in hardship. Others would strictly construe the terms of such clauses and would invalidate them if the occurrence of the pandemic did not make the performance impossible. This paper examines the non-performance of transnational contracts due to the COVID-19 outbreak when they are governed by Indian law. It highlights the situations when an international contract for the sale of goods or services whose performance has been allegedly hindered due to COVID-19 would (a) frustrate and (b) breach the agreement under Indian law. The paper provides a comparative analysis of Indian law with jurisdictions such as France, Germany, Austria, China, the United Kingdom, Australia and the United States to demonstrate that Indian law is not well equipped to deal with complex lawsuits arising due to the non-performance of contracts as a result of the pandemic.

About the Author

S. Khanderia
Jindal Global Law School
India

Saloni Khanderia – Associate Professor, Jindal Global Law School (OP Jindal Global University)

B1 805 Tulip Apartments, Sonipat-Narela Road, Sonipat, Haryana, 131001



References

1. Commentary on the UN Convention on the International Sale of Goods (CISG) (P. Schlechtriem & I. Schwenzer (eds.), 4 th ed., Oxford: Oxford University Press, 2016). https://doi.org/10.1093/law/9780198723264.001.0001

2. Khanderia S. Commercial Impracticability Under the Indian Law of Contract: Assessing the Role of the UNIDROIT Principles, 7(2) UCL Journal of Law and Jurisprudence 52 (2019).

3. Mulla D.F. Mulla on the Sale of Goods Act and the Indian Partnership Act (10 th ed., Delhi: Lexis Nexis, 2012).

4. Treitel G. Frustration and Force Majeure (3 rd ed., London: Sweet and Maxwell, 2014).

5. Vogenauer S. Introduction in Commentary on the UNIDROIT Principles of International Commercial Contracts (PICC) 7 (S. Vogenauer (ed.), 2 nd ed., Oxford: Oxford University Press, 2015).


For citation:


Khanderia S. Transnational Contracts and Their Performance During the COVID-19 Crisis: Reflections from India. BRICS Law Journal. 2020;7(3):52-80. https://doi.org/10.21684/2412-2343-2020-7-3-52-80

Views: 709


Creative Commons License
This work is licensed under a Creative Commons Attribution 4.0 License.


ISSN 2409-9058 (Print)
ISSN 2412-2343 (Online)