FORCE MAJEURE AND COVID-19: LEGAL RISKS OF A DOUBLE-EDGED SWORD

The document warns governments that force majeure is a "double-edged sword" during the COVID-19 pandemic, as they may face claims from companies while simultaneously needing to invoke force majeure to defend their own emergency measures. It recommends a cautious approach, prioritizing negotiated short-term solutions "without prejudice" and avoiding broad public legal statements that could undermine future defenses in contract or investor-state disputes.

• Force majeure is described as a "double-edged sword" for governments because they must manage claims from companies seeking relief from obligations while potentially needing to invoke the same legal defense to justify their own pandemic-related actions in contract disputes or investor-state disputes (ISDSs).
• The document advises governments to avoid making immediate, broad arguments against the application of force majeure, as doing so could prejudice their ability to use force majeure as a defense for their own actions in the future.
• Governments are encouraged to pursue pragmatic, negotiated short-term solutions with companies that are implemented "without prejudice," allowing immediate health and safety issues to be addressed without establishing binding legal interpretations of force majeure.
• There is a recommended need for governments to conduct risk assessments of their legal exposure regarding potential breaches of contract or investment treaty obligations resulting from COVID-19 measures, especially as law firms and third-party funders seek cases against states.
• China has already utilized force majeure declarations for many of its commercial contracts, likely to protect its companies from foreign claims regarding the non-delivery or non-purchase of contracted products.

APA

Mann, H. (2020). FORCE MAJEURE AND COVID-19: LEGAL RISKS OF A DOUBLE-EDGED SWORD. International Institute for Sustainable Development. https://www.iisd.org/system/files/publications/force-majeure-covid-19-en.pdf

Chicago

Mann, Howard. FORCE MAJEURE AND COVID-19: LEGAL RISKS OF A DOUBLE-EDGED SWORD. International Institute for Sustainable Development, 2020. https://www.iisd.org/system/files/publications/force-majeure-covid-19-en.pdf.

Wikipedia

{{cite report |last1=Mann |first1=Howard |title=FORCE MAJEURE AND COVID-19: LEGAL RISKS OF A DOUBLE-EDGED SWORD |publisher=International Institute for Sustainable Development |date=May 2020 |url=https://www.iisd.org/system/files/publications/force-majeure-covid-19-en.pdf |access-date=17 August 2026 |via=Climate Insights Directory}}

BibTeX

@techreport{mann2020force, author = {Mann, Howard}, title = {{FORCE MAJEURE AND COVID-19: LEGAL RISKS OF A DOUBLE-EDGED SWORD}}, institution = {International Institute for Sustainable Development}, year = {2020}, month = may, url = {https://www.iisd.org/system/files/publications/force-majeure-covid-19-en.pdf}, urldate = {2026-08-17}, note = {Indexed by Climate Insights Directory} }