Considers the operation of the doctrine of frustration and force majeure provisions in the context of the ongoing COVID-19 pandemic. The paper aims to provide an overview of how these two concepts interrelate and identifies some practical limitations surrounding their application to non-performance caused by the pandemic. It argues that a prudent way to allocate pandemic related risks is via a well-drafted force majeure provision rather than relying on the “uncertain” doctrine of frustration at common law. The paper also examines whether termination for convenience clauses can confer unfettered cancellation rights in circumstances where the project is no longer commercially viable.
Publication year
2021