{"id":570308,"date":"2020-03-26T04:11:50","date_gmt":"2020-03-26T04:11:50","guid":{"rendered":"https:\/\/enterpriseam.com\/egypt\/2020\/03\/26\/the-legal-implications-of-covid-19-what-does-force-majeure-mean-for-business\/"},"modified":"2020-03-26T04:11:50","modified_gmt":"2020-03-26T04:11:50","slug":"the-legal-implications-of-covid-19-what-does-force-majeure-mean-for-business","status":"publish","type":"post","link":"https:\/\/enterpriseam.com\/egypt\/2020\/03\/26\/the-legal-implications-of-covid-19-what-does-force-majeure-mean-for-business\/","title":{"rendered":"The legal implications of covid-19: What does force majeure mean for business?"},"content":{"rendered":"

<\/a> The legal implications of covid-19: What does force majeure mean for business? <\/strong>The covid-19 crisis has evolved rapidly over the past few weeks, forcing the government to take increasingly disruptive measures to mitigate its impact on public health and the economy \u2014 and businesses to take their own precautions to look after staff and customers. The closure of businesses and the introduction of a nationwide 7pm-6am curfew only ramps up the likelihood that businesses could find it challenging to meet contractual obligations in the weeks and months to come.<\/p>\n

Enter force majeure clauses, a common contract feature: <\/strong>Contracts often contain clauses that enable parties to suspend contractual agreements in the event of \u201cforce majeure\u201d (or a so-called \u201cact of God\u201d). For this to happen, the event must of a magnitude that makes delivery of an agreement, or parts of it, impossible. So long as such an event persists, obligations can effectively be paused without incurring penalties. If a contract doesn\u2019t include a force majeure clause, you may have the option of going to court to prove that force majeure is preventing the fulfillment of a contractual obligation.<\/p>\n

So covid-19 is force majeure, right? <\/strong>Not necessarily. The suspension of a contract under force majeure is really a case-by-case thing, lawyers with whom we spoke tell us.Some force majeure clauses directly reference pandemics or epidemics, while others refer broadly to events with impact, or even to \u201cplagues\u201d and \u201cnatural disasters.\u201d There\u2019s also the question of regulatory decisions. Businesses relying on materials from high-risk areas, including much of Europe where factories have shut down, can more easily claim force majeure and renegotiate contracts or suspend parts of their agreements.<\/p>\n

Have a look here<\/a><\/strong> at examples of how force majeure clauses are typically phrased.<\/p>\n

These clauses, sometimes referred to as \u201cpress-pause\u201d provisions in simple legalese, <\/strong>are stated in most high-value contracts<\/strong> in Egypt as a contingency measure, Karim Youssef, managing partner at Cairo-based firm Youssef & Partners<\/a>, tells us. That said, it\u2019s entirely up to the contracting parties to decide what constitutes force majeure. The parties can choose to agree that anything counts, from a minor disturbance to a major economic shock.<\/p>\n

Businesses among those likely to resort to force majeure <\/strong>are those in heavy manufacturing, construction (due to site closures), hospitality, transport, satellite services for airports and seaports, sports, importer-exporters and others in supply-chain intensive industries, Youssef says.<\/p>\n

Implications of the 6am-7pm curfew: <\/strong>Egypt\u2019s evening curfew, which was declared earlier this<\/a>week<\/a>, potentially triggers a hardship situation born out of, but not directly due to, the outbreak, Mohamed Salah Abdel Wahab, founding partner at law firm Zulficar & Partners, told Enterprise. The curfew was due to a rare, universal, and unforeseen event and falls under the doctrine of \u201cexceptional public circumstances,\u201d law firm Al Tamimi & Co said in a note yesterday. This doctrine is based on the theory of \u2018impr\u00e9vision\u2019 in French law, and roughly coincides with the hardship clause in common law. A hardship situation doesn\u2019t rule out the possibility of invoking force majeure if it can be proven that performance was impossible, Abdel Wahab says.<\/p>\n

\u201cImpossibility\u201d is the key difference between hardship and force majeure: <\/strong>Imagine a manufacturer that was able to operate a plant for three shifts a day can now only run a single shift, says Shalakany Law Office senior partner Aly El Shalakany. The company is in a tough spot, but it still may not mean it\u2019s impossible to make deliveries to customers. In a case like this, and in many others where force majeure isn\u2019t enforceable in court or explicitly stated in the contract, courts can reasonably reduce a party\u2019s contractual obligations if it was established that contract was affected by hardship.<\/p>\n

Having problems? The last thing you want to do as a business leader is call your lawyer.<\/strong> Get in touch with the person on the other side of the contract \u2014 they\u2019re probably feeling the squeeze, too, and you may be able to work something out. \u201cContracting parties should keep their channels of communication open as the last thing they should consider is to take the issue up for dispute resolution,\u201d Shalakany says. Everyone would do well to be reasonable under the current circumstances, he said, particularly if there\u2019s a long-term partnership or repeat business involved.<\/p>\n

Communication is key in the times we\u2019re in today.<\/strong> In our conversation with Orascom Construction CEO Osama Bishai for this week\u2019s edition of Hardhat<\/a>, Bishai told us that OC has made it a priority to communicate constantly with clients and stakeholders both to keep them informed and to reach out to them in the event they are hit by the covid-19 crisis.<\/p>\n

Still, it would be a good idea to pull out that contract and see where you stand: <\/strong>Good practice means a contractual \u201creality check,\u201d or review of key clauses in outstanding agreements \u2014 including termination, force majeure, hardship, stabilization, delays and dispute resolution. Have a lawyer walk you through them, Youssef suggests.<\/p>\n

Force majeure isn\u2019t limited to B2B \u2014 it can have implications for employment too: <\/strong>\u201cCompanies have been coming our way with questions on employment contracts,\u201d says Ghada El Ehwany, partner at Baker McKenzie\u2019s Cairo office Helmy, Hamza & Partners. Force majeure and hardship are relevant in this case for several reasons. If the situation deteriorates more than it has already, employers may be forced to terminate contracts, opening up avenues for severance pay. Under force majeure, they might be able to minimize their exposure.<\/p>\n

There\u2019s a high level of uncertainty,<\/strong> and employers want to know whether there\u2019s a way out of labor law provisions that could hurt when cashflows are already being squeezed, including stipulations requiring them to pay 50% of an employee\u2019s wage even if the business is temporarily suspended. \u201cNo one is taking action, but they\u2019re anticipating that their business will be impacted, and that might ultimately lead to the need for some measures to cut costs,\u201d Ehwany said.<\/p>\n

And not just limited to Egypt:<\/strong> In China, where the covid-19 originated, the government directly issued force majeure certificates, exempting them from liability if they breach contracts. As of the beginning of this month, China had handed out 4.8k certificates<\/a> to companies, covering nearly USD 53 bn of contracts. The Financial Times<\/a> says this was an attempt to absolve local exporters of their obligations. Elsewhere, the European Construction Industry Federation is calling<\/a> on the bloc\u2019s executive branch to publicly announce the covid-19 pandemic as a case of force majeure.<\/p>\n","protected":false},"excerpt":{"rendered":"

The legal implications of covid-19: What does force majeure mean for business? The covid-19 crisis has evolved rapidly over the past few weeks, forcing the government to take increasingly disruptive measures to mitigate its impact on public health and the economy \u2014 and businesses to take their own precautions to look after staff and customers. […]<\/p>\n","protected":false},"author":1,"featured_media":570309,"comment_status":"closed","ping_status":"open","sticky":false,"template":"single-feature.php","format":"standard","meta":{"_acf_changed":false,"newspack_ads_suppress_ads":false,"newspack_popups_has_disabled_popups":false,"newspack_sponsor_sponsorship_scope":"","newspack_sponsor_native_byline_display":"inherit","newspack_sponsor_native_category_display":"inherit","newspack_sponsor_underwriter_style":"inherit","newspack_sponsor_underwriter_placement":"inherit","ep_exclude_from_search":false,"_primary_brand":0,"newspack_featured_image_position":"","newspack_post_subtitle":"","newspack_article_summary_title":"Overview:","newspack_article_summary":"","newspack_hide_updated_date":false,"newspack_show_updated_date":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8572],"tags":[4860,107,72,4861,2380],"brand":[],"newspack_spnsrs_tax":[],"class_list":["post-570308","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-speed-round","tag-civil-law","tag-covid-19","tag-enterpriseam","tag-force-majeure","tag-speed-round","wpautop","entry"],"acf":{"mongo_id":"17de7040-c999-4a83-a314-fbbab09d3dcf","is_powered_by":true,"story_type":"1","photo_url":"https:\/\/ent.news\/2020\/3\/301.jpg","photo_position":"above","related_issue":[570303],"teaser":"","voice_url":""},"yoast_head":"\nThe legal implications of covid-19: What does force majeure mean for business? - EnterpriseAM Egypt<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/enterpriseam.com\/egypt\/2020\/03\/26\/the-legal-implications-of-covid-19-what-does-force-majeure-mean-for-business\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The legal implications of covid-19: What does force majeure mean for business?\" \/>\n<meta property=\"og:description\" content=\"The legal implications of covid-19: What does force majeure mean for business? 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The lifting of the force majeure could allow exports to return to full capacity, adding 850k barrels\u2026","rel":"","context":"In "AROUND THE WORLD"","block_context":{"text":"AROUND THE WORLD","link":"https:\/\/enterpriseam.com\/egypt\/category\/around-the-world\/"},"img":{"alt_text":"","src":"https:\/\/i0.wp.com\/ent.news\/internal\/536550.png?resize=350%2C200&ssl=1","width":350,"height":200},"classes":[]},{"id":548183,"url":"https:\/\/enterpriseam.com\/egypt\/2022\/07\/28\/egypt-pulls-plug-on-contracts-for-stranded-ukrainian-wheat\/","url_meta":{"origin":570308,"position":1},"title":"Egypt pulls plug on contracts for stranded Ukrainian wheat","author":"enterpriseam admin","date":"28 July 2022","format":false,"excerpt":"GASC cancels contracts for stranded Ukrainian wheat: The General Authority for Supply Commodities (GASC) has pulled the plug on contracts for 240k tons of stranded Ukrainian wheat booked earlier this year, sources told Reuters. The four cargoes were booked for February and March delivery but never set sail due to\u2026","rel":"","context":"In "Also on our Radar"","block_context":{"text":"Also on our Radar","link":"https:\/\/enterpriseam.com\/egypt\/category\/also-on-our-radar\/"},"img":{"alt_text":"","src":"https:\/\/i0.wp.com\/ent.news\/internal\/536550.png?resize=350%2C200&ssl=1","width":350,"height":200},"classes":[]},{"id":548415,"url":"https:\/\/enterpriseam.com\/egypt\/2022\/08\/08\/egypt-to-renegotiate-canceled-ukraine-wheat-contracts\/","url_meta":{"origin":570308,"position":2},"title":"Egypt to renegotiate canceled Ukraine wheat contracts","author":"enterpriseam admin","date":"8 August 2022","format":false,"excerpt":"Egypt will sign new agreements with suppliers of Ukrainian wheat to replace contracts it canceled last month, Ukrainian media reported yesterday. State grains buyer GASC terminated contracts for 240k tons of stranded Ukrainian wheat after they remained stuck in the country for months due to Russia\u2019s blockade of the country\u2019s\u2026","rel":"","context":"In "Commodities"","block_context":{"text":"Commodities","link":"https:\/\/enterpriseam.com\/egypt\/category\/industries\/commodities\/"},"img":{"alt_text":"","src":"https:\/\/i0.wp.com\/ent.news\/2022\/8\/187.jpg?fit=%2C&ssl=1&resize=350%2C200","width":350,"height":200},"classes":[]},{"id":624717,"url":"https:\/\/enterpriseam.com\/egypt\/2018\/09\/17\/opinion-writers-are-mad-we-are-losing-at-intl-arbitration\/","url_meta":{"origin":570308,"position":3},"title":"Opinion writers are mad we are losing at int\u2019l arbitration","author":"enterpriseam admin","date":"17 September 2018","format":false,"excerpt":"**#7 Opinion writers, unhappy Egypt is \u201closing\u201d at int\u2019l arbitration, simply miss the point: Since the USD 2 bn ruling handed down by the International Centre for Settlement of Investment Disputes in favor of Union Fenosa, opinion writers have expressed frustration at this \u201closing streak.\u201d Ziad Bahaa El Din is\u2026","rel":"","context":"In "On Deadline"","block_context":{"text":"On Deadline","link":"https:\/\/enterpriseam.com\/egypt\/category\/on-deadline\/"},"img":{"alt_text":"","src":"https:\/\/i0.wp.com\/ent.news\/internal\/536550.png?resize=350%2C200&ssl=1","width":350,"height":200},"classes":[]},{"id":546489,"url":"https:\/\/enterpriseam.com\/egypt\/2022\/05\/18\/india-to-ease-wheat-export-restrictions-slightly\/","url_meta":{"origin":570308,"position":4},"title":"India to ease wheat export restrictions (slightly)","author":"enterpriseam admin","date":"18 May 2022","format":false,"excerpt":"India softens wheat ban after sparking panic among traders: India will allow the export of wheat shipments that are waiting for customs clearance, easing restrictions announced last week that threaten to aggravate global food shortages, the government said in a statement yesterday. All shipments registered with customs before 14 May\u2026","rel":"","context":"In "Commodities"","block_context":{"text":"Commodities","link":"https:\/\/enterpriseam.com\/egypt\/category\/industries\/commodities\/"},"img":{"alt_text":"","src":"https:\/\/i0.wp.com\/ent.news\/2022\/5\/231.jpg?fit=%2C&ssl=1&resize=350%2C200","width":350,"height":200},"classes":[]},{"id":570557,"url":"https:\/\/enterpriseam.com\/egypt\/2020\/04\/06\/egypts-non-oil-private-sector-activity-falls-to-three-year-lows-as-covid-19-hits-output-new-orders\/","url_meta":{"origin":570308,"position":5},"title":"Egypt\u2019s non-oil private sector activity falls to three-year lows as covid-19 hits output, new orders","author":"enterpriseam admin","date":"6 April 2020","format":false,"excerpt":"Stung by covid-19 outbreak, non-oil business activity falls to three-year lows on declining output, dearth of new orders: Egypt\u2019s non-oil business activity continued to shrink in March as the the covid-19 pandemic caused \u201csharp downturns\u201d in output and new orders, according to IHS Markit\u2019s purchasing managers\u2019 index (PMI) (pdf). The\u2026","rel":"","context":"In "Speed Round"","block_context":{"text":"Speed Round","link":"https:\/\/enterpriseam.com\/egypt\/category\/speed-round\/"},"img":{"alt_text":"","src":"https:\/\/i0.wp.com\/ent.news\/2020\/4\/44.png?fit=%2C&ssl=1&resize=350%2C200","width":350,"height":200},"classes":[]}],"_links":{"self":[{"href":"https:\/\/enterpriseam.com\/egypt\/wp-json\/wp\/v2\/posts\/570308","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/enterpriseam.com\/egypt\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/enterpriseam.com\/egypt\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/enterpriseam.com\/egypt\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/enterpriseam.com\/egypt\/wp-json\/wp\/v2\/comments?post=570308"}],"version-history":[{"count":0,"href":"https:\/\/enterpriseam.com\/egypt\/wp-json\/wp\/v2\/posts\/570308\/revisions"}],"acf:post":[{"embeddable":true,"href":"https:\/\/enterpriseam.com\/egypt\/wp-json\/wp\/v2\/issue\/570303"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/enterpriseam.com\/egypt\/wp-json\/wp\/v2\/media\/570309"}],"wp:attachment":[{"href":"https:\/\/enterpriseam.com\/egypt\/wp-json\/wp\/v2\/media?parent=570308"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/enterpriseam.com\/egypt\/wp-json\/wp\/v2\/categories?post=570308"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/enterpriseam.com\/egypt\/wp-json\/wp\/v2\/tags?post=570308"},{"taxonomy":"brand","embeddable":true,"href":"https:\/\/enterpriseam.com\/egypt\/wp-json\/wp\/v2\/brand?post=570308"},{"taxonomy":"newspack_spnsrs_tax","embeddable":true,"href":"https:\/\/enterpriseam.com\/egypt\/wp-json\/wp\/v2\/newspack_spnsrs_tax?post=570308"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}