Legal Perspective on Pandemic-Related Entitlement Eligibility under Civil and Common Law Jurisdictions

Abstract

The COVID-19 pandemic significantly impacted various industries and caused the construction sector to face substantial disruptions due to governmentally-imposed restrictions and safety measures. These disruptions have introduced complex legal challenges, particularly regarding the interpretation and enforcement of force majeure (FM) clauses in construction contracts. Given the global scale of the pandemic, the application of FM clauses has varied across different legal jurisdictions, revealing inconsistencies in their interpretation and enforcement. This study employs a comparative legal analysis, examining case law, statutory provisions, and contractual practices from multiple jurisdictions to analyze differences in how FM clauses are interpreted and enforced across civil and common law jurisdictions. The findings indicate significant disparities, with civil law jurisdictions generally offering broader relief under FM clauses, while common law systems adopt a more restrictive approach. Yet, other legal remedies are found to have their relevance under common law jurisdictions, including the frustration, illegality, and impossibility/impracticability doctrines. The study concludes that a more uniform approach for drafting FM clauses is needed, which can more comprehensively address the specific risks posed by global events like pandemics, such that fair and equitable management of contractual obligations can be achieved.