Articles by author
(Un)reasonable endeavours: force majeure clauses and offers of non-contractual performance
Can a party be required to accept an offer of non-contractual performance so as to overcome what would otherwise be a force majeure event? In its recent decision in MUR Shipping BV v RTI Limited, the Supreme Court held that the answer to this question was “no”, finding that the Appellant was not obliged to accept an offer by the Respondent to pay in euros where the contract provided for payment in USD. While the court’s decision may provide parties with greater certainty when it comes to force majeure clauses, this certainty arguably comes at the expense of a “business common sense” approach, and leaves open the possibility that a contract may be suspended or terminated even where a force majeure event could have been overcome by acting reasonably.
31 JUL 2024An assessment of the reliability requirement in the Electronic Trade Documents Act
On 20 September 2023 the Electronic Trade Documents Act (ETDA) came into force. Formerly, in English law, document possession usually required physical possession. Now, the ETDA allows for “electronic trade documents” to be treated as equivalent to traditional “paper trade documents”, if they meet certain “gateway” criteria underpinned by a “reliable system”. In this article, we consider how the English courts are likely to approach interpretating this reliability requirement. Would any flaw in the system, no matter how short-lived and abnormal, render it unreliable? Or would a more detailed systemic analysis be needed? If so, what would that look like?
1 MAR 2024
