Force majeure is an event that, by its unforeseen characteristic, is beyond State’s control capacity, making the performance of an obligation materially impossible to accomplish. The concept exists in both, the private law of (domestic and international) contracts, as well as in international investment law.
In the context of armed conflicts, examples where force majeure may be given are the host State’s impossibility to control a portion of its territory, as a consequence of an insurgency, or the havoc of area caused by military affairs of a third State.
Some of the conditions which are typically considered as required in order for a force majeure objection to succeed are:
- The force majeure situation made the performance of the obligation in question impossible,
- The force majeure incident was unforeseeable,
- The force majeure event was not associated with the respective counterparty.
Relevant Experience of BODENHEIMER Attorneys
Axel Benjamin Herzberg and Dr Rouven F Bodenheimer routinely advise both, investors and governments on international investment law issues. Mr Herzberg also handled a number of ISDS cases as Deputy Counsel at the Secretariat of the ICC International Court of Arbitration in Paris.
Dr Nicolas Klein worked for German Federal Constitutional Court Justice Professor Dr Andreas Paulus, himself a renowned public international law specialist who represented Germany, inter alia, before the International Court of Justice in the LaGrand case against the United States. Both, Dr Klein’s doctoral thesis and his LL.M. studies at Columbia University (New York) revolved around issues of international investment law, in particular the scope of application ratione personae of bilateral investment treaties.
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