New RSU book examines COVID-19 and other force majeure situations in contract law
Writer: Linda Rozenbaha (Public Relations Unit)
Photo: Courtesy of Linda Rozenbaha
Force majeure is a phenomenon that affects people throughout their lives from the moment they are born, as birth itself is a force majeure event. This force influences many processes, including legal and public administration; however, it is important to acknowledge that we cannot change what has already happened, but we can change what will happen in the future.
At the end of the year, Rīga Stradiņš University (RSU) published a book titled Nepārvarama vara civiltiesībās un valsts pārvaldē (Force Majeure in Civil Law and Public Administration). Its authors are RSU Prof. emer. Dr. habil. iur. Osvalds Joksts and Assoc. Prof. Dr. iur. Anatolijs Kriviņš from Daugavpils University, who obtained his doctoral degree at RSU. Both authors are experts in law for the Latvian Council of Science.
Together with the authors of the book, we take a closer look at what we can learn from it and what surprised the authors themselves in their study on the topic.
‘I seek out creativity’
Prof. Joksts specialises in civil law, including property and non-property rights. He is the author of the book’s concept.
‘While still working at the Latvian Police Academy, we had a very good relationship with the Embassy of France and with the Ambassador Extraordinary and Plenipotentiary of France at the time, Jeanne Debené [this was in the late 1990s – author’s note]. We cooperated very closely and already back then, I knew that “force majeure” was a term of French origin,’ recalls Prof. Joksts.
‘In 2017 or 2018, I read an interesting article in the magazine Jurista Vārds, in which two lawyers described a problem related to a dispute in an international cargo transportation case. The cargo transportation contract highlighted force majeure. I became interested in this topic, especially because, while actively attending professional conferences, the issue of force majeure situations was hardly ever discussed.
I decided to study the topic, as I seek out creativity.
At first, I wrote two articles and then decided to study the topic in more depth. A few years ago, I began working on the book. I took on the work by myself but also looked for a co-author and found one – former RSU doctoral student, Assoc. Prof. Anatolijs Kriviņš, who is a diligent and “deeply digging” young man. He wrote the book’s chapter on the impact of force majeure in the 21st century.’
The professor admits that the intensive work lasted for two years and the book had been examined by serious reviewers, such as the RSU Council of Science. ‘And that is good,’ he says,
‘the more feedback and recommendations you receive during the writing process, the better the final product becomes.
I have written almost two dozen books, and this book has been granted the status of a scientific monograph by the decision of the RSU Council of Science.’
Force majeure can be good or bad, explains the author, giving several examples. ‘To be born is a good force majeure event. The war in Ukraine is a bad force majeure event. Or illness. The same goes for natural disasters. For instance, in Jēkabpils, where I currently live, we were forced to evacuate in 2023 because of flooding.’
Of course, the book addresses civil law and public administration and how force majeure affects them.
Not only natural disasters
The study allowed the authors to define the concept of force majeure for the first time: 'Force majeure is the existence and functioning of the genesis of natural processes, and the transformation of the rule of law in the interests of society; it is the purposeful and responsible action by secular authorities and every subject of law to prevent and eliminate the resulting legal consequences.'
It follows that
force majeure, as a natural phenomenon, can generate and contain several important elements that transfer the manifestation of natural law to the representatives of secular authority who must seek for approaches to prevent the legal consequences caused by the supernatural forces of nature.
This means that it can cause a variety of legal infringements - whether in the area of property or ownership rights, personal non-property rights, in the field of individual moral rights, as well as in the restriction of commercial and economic activities under market conditions.
As force majeure does not have apparent legal capacity, it should be regarded as the basis for the occurrence of unpredictable events and phenomena that produce significant legal consequences.
Prof. Joksts explains: ‘This means that force majeure “provokes” legislators not only to adopt certain regulatory acts to combat natural disasters, but also to issue the “right” legal acts aimed at preventing challenges to the security of the state and society as a whole.
At the same time, we should not forget that the carrier of the idea of force majeure and its actual executor is a human being, who - like many other things - has been created by nature in the spiritual and material world.’
The researcher adds that such discoveries do not always lead to an understanding of radical, welfare-oriented actions to be applied on the governance of the state and society by legislative and executive structures. Often, “top league” officials do not understand the proposals of force majeure, failing to see or forgetting those who are in the same situation but perhaps slightly “disadvantaged”.
‘Nature or force majeure makes us all equal and there must not be any rejected; if there are, however, then we ourselves are to blame,” says Prof. Joksts.
Modern challenges
Apart from natural disasters and war, what else can be considered force majeure today? The co-author of the book, Assoc. Prof. Anatolijs Kriviņš, explains: ‘In legal terms, force majeure is not limited to natural disasters or war. The key is not the origin of the event, but a set of criteria: it must be external for a contracting party, unforeseeable at the time of conclusion of the contract, and objectively unavoidable, making the performance of the obligation impossible (not just more difficult or more expensive).
In addition to natural conditions and armed conflicts, the following legally significant events can also be considered force majeure in the context of contract performance:
- actions by the state or acts of public authority
- critical infrastructure failures
- public health crises
- economic and financial shocks
- events caused by climate change
- cybersecurity incidents and systemic technological failures, etc.
Accordingly, in contract law, force majeure covers not only “classic” catastrophes but also the complex spectrum of modern global risks, where the question about the boundary between foreseeable business risks and truly insurmountable, external events becomes legally significant.
It is precisely this boundary that is most often at the centre of disputes and determines whether a contracting party is released from liability for the failure to perform its obligations.’
Although the concept of force majeure has stabilised over a long period of development from Ancient Rome to the significant solutions achieved in the 20th century, it continues to evolve in the 21st century as well. Problematic issues are still being identified, and new insights formulated.
Assoc. Prof. Kriviņš continues: ‘When analysing the 21st century context, it must be taken into account that the concept of force majeure is essentially characterised by its transformation from a narrow local doctrine in Ancient Rome to a global doctrine. At the same time, this process is influenced by the diversity of regional traditions and the complex interaction with national legal regulations, which, as part of the global system, still retain their originality. National legal polyphony is mainly because the world is not unified, centralised, and does not have a single cultural centre. Therefore, polycentrism remains an important feature of force majeure.’
Nowadays and in the near future, the concept of force majeure is increasingly acquiring new, legally complex aspects that can directly affect countries, companies, and individuals.
For example, in international law, the issue of state responsibility is becoming increasingly relevant in situations where the failure to fulfil international obligations arises from circumstances that the state is objectively unable to control due to irresistible force or unforeseen events that make the fulfilment of obligations materially impossible.
At the same time, in the manufacturing sector, the concept of force majeure is widely discussed in connection with sharp fluctuations in currency exchange rates, rapid increases in market prices, planned factory shutdowns, or the collapse of usual supply chains, raising questions about whether such economic shocks can still be considered unforeseeable.
Equally important is the impact of force majeure on the emergency medical care system, where, in case of mass casualties (e.g., during natural disasters or military threats), pre-developed, legally and organisationally clear algorithms are necessary to provide quality assistance.
In contract law, such situations call for a detailed analysis of force majeure clauses, the identification of risks and obligations, the specifics of event qualification, as well as the solutions proposed by arbitration courts and potential benefits, with timely notification of the occurrence of force majeure.
At the same time, in urban planning, new approaches are being sought to legally and practically mitigate the impact of force majeure, using analytical hierarchy processes, interdependence analysis, and other semi-quantitative methods to predict and prevent, for example, the risk of earthquakes or large-scale urban fires.
The issue of climate change is also particularly relevant - whether it can be classified in maritime environmental law as an unforeseeable, irresistible, and external factor, i.e. as force majeure.
Finally, in international investment law, the qualification of armed conflict as force majeure demonstrates how closely modern global security, environmental, and economic challenges are intertwined with the development of the concept of force majeure, making it particularly relevant in both theoretical and practical legal analysis.
When asked what he found most surprising or interesting about legal situations affected by force majeure, Assoc. Prof. Anatolijs Kriviņš said: ‘Personally, the most surprising and at the same time most interesting example of force majeure is how rapidly and in how diverse ways this concept has “stepped out” of theory in recent years and become a very real, tangible legal instrument.
This was particularly evident during the Covid-19 pandemic – an event that simultaneously affected almost all areas of law.
Suddenly, force majeure was no longer an abstract clause in a contract, but an argument used to justify border closures, breach of contracts, suspension of construction works, cancellation of events, and even the limits of state liability.
I was struck by how differently courts and arbitration tribunals evaluated the pandemic - not as an automatic excuse, but as a situation in which the specific impact on each obligation had to be carefully assessed. Equally interesting were the cases in which cyberattacks were analysed as potential force majeure events. This caused a certain emotional dissonance - we are used to associating force majeure with natural disasters or war, yet suddenly a single invisible attack can paralyse banking systems, logistics, or even state administration.
In such cases, the question arises of how important it is that the risk is properly distributed between the parties at the time the contract is concluded. It was precisely the correct distribution of risk in cases of force majeure that struck me as a particularly important insight.
In many disputes, the decisive factor was not the event itself, but whether the contract specified precisely enough who bore the consequences and to what extent. This indicates that contract provisions on force majeure are not merely a “lifebuoy,” but also the result of careful legal planning - either protecting or exposing the weak points of the contract.
The application of force majeure in international investment arbitration also left a particularly strong impression. Here, force majeure no longer concerned just an individual contract, but the actions of the state as a whole - for example, decisions adopted during the crisis that affected international investors. It was truly interesting to see how delicate the balance was between a state’s right to act in emergency situations and the protection of investors, and how carefully arbitral tribunals analysed whether the state really could not have acted otherwise.
Finally, the link between force majeure and new approaches to assessing the likelihood of bankruptcy seemed very interesting. In crisis situations, it becomes clear that traditional financial indicators do not always reflect a company’s true condition if its insolvency has resulted from external, uncontrollable events. Here, force majeure becomes a crucial factor that changes how a company's viability, liability, and recovery potential is viewed.
Overall, my research direction has been most influenced by how diverse and "alive" the application of force majeure is in the 21st century law – from pandemics and cyberattacks to investment disputes and bankruptcy risk analysis. It is not just a theoretical construct, but a powerful tool that reveals how closely law is connected to global disruptions and human inability to control everything.’
A book not just for lawyers
Although the book deals with legal situations, it also has a philosophical touch. Anatolijs Kriviņš explains it as follows: ‘Although there are various formats to talk about science, traditionally, it takes place within the academic environment, which has its own rules. Times change, and this motivates us to approach legal issues from a much broader perspective. By exploring patterns and connections, we inevitably touch not only on legal aspect, but also on others – such as historical and economic, political and social, psychological and philosophical ones. It is precisely this approach that allows exploring complex concepts in a multifaceted way.’
Prof. Joksts recommends the book not only to lawyers, but also to entrepreneurs and anyone entering contracts. ‘I teach prospective and practising lawyers to include two words in contracts – force majeure – because they can express a lot,’ emphasises Prof. Joksts. ‘In a dispute involving force majeure, either party can win in court - much will be determined by the contract, including cleverly drafted force majeure clauses.’
The book has just been published, but Prof. Osvalds Joksts has already started writing his next book, which will be more devoted to the philosophical context of law.
