Rethinking Force Majeure in a World of Anthropogenic Climate Change

Abstract

This article addresses the question of whether extreme weather events should work as an excuse for private parties or even nation states from having to perform their legal obligations.

The old, but still very viable, doctrine of force majeure/"act of God" may enable both companies and nation states to avoid their responsibilities and duties. The doctrine covers unforeseeable events outside the control of a party such as natural disasters. But in a world with proven anthropogenic climate change, are such disasters truly "natural"? Does it make legal and factual sense to continue to allow parties to escape legal liability when modern science has proved that in all likelihood, people – not any mysterious universal power – have created most of the problems for which we also seek to avoid responsibility?

Force majeure rests on the notion that "man" is somehow separated from "nature." This article challenges that notion and argues that in many cases, it does not make sense to apply the doctrine anymore. At least, judges should be very careful in doing so for reasons of public policy and risk allocation just as contractual parties should be careful when they think they may be able to escape future liability by invoking force majeure/"act of God" clauses.

Keywords: Climate change, global warming, extreme weather, force majeure, act of God, contracts law, contracts law defenses, torts, torts liability defenses, international environmental law, private international law, public international law