Rethinking «Fuerza Mayor» in a World of Anthropogenic Climate Change

Authors

  • Myanna F. Dellinger University Of Oregon School Of Law
    After a successful first career in international communications and university instruction on two continents, Professor Dellinger graduated from law school at the top of her class at the University Of Oregon School Of Law (Order of the Coif ). She has interned for the United Nations Framework Convention for Climate Change and clerked for the late Hon. Francis J. D’Eramo of the Superior Court of the United States Virgin Islands as well as for the Hon. Procter Hug, Jr., of the United States Court of Appeals for the Ninth Circuit. She is currently an Associate Professor of Law with Western State College of Law where she teaches Contracts Law and Administrative Law. She researches and writes extensively on international law with a particular focus on climate change. Professor Dellinger is also a regular contributor to Contracts ProfBlog where her blogs often incorporate international and environmental issues. Professor Dellinger is the co-chair of the American Branch of the International Law Association and a member of the American Society for International Law. She has visited 33 nations for business and pleasure. Professor Dellinger is extremely grateful for the thorough and highly productive research assistance and intellectual sparring provided by Alexander Shaaban, Doctor of Jurisprudence candidate 2016, Western State College of Law. Thank you very much to attorney Luis Antonio La Rosa for translating this article into Spanish.

Keywords:

Climate change, Global warming, Extreme weather, Force majeure, Act of God, Contract law, Contract law defenses, Torts liability defenses, International environmental law

Abstract

This article addresses the question of whether extreme weather events should form the basis for individuals or even the States, may be exempted from complying with its legal obligations.
The old, but still very viable institution of force majeure can empower both companies and nations to absolve themselves of their responsibilities and duties. However, in a world where human-induced climate change is proven, could we say that such disasters are truly«natural»? Does it make sense, from a legal and factual matter, that they continue to allow the parties to be exempt from liability when modern science has shown that in all probability people, not some enigmatic power, have caused most universally of the problems that hold us harmless looking?
Force majeure is based on the idea that the «man» somehow is separate from «nature». This article challenges this idea and argues that, in many cases, no longer makes sense to apply the institution of force majeure. At least, judges should be very careful in doing so for reasons of public policy and allocation of risks. In addition, the contracting parties must have enough caution to claim that they may be able to exempt themselves from future liability clauses appealing «force majeure».

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Published

2014-05-04

How to Cite

Dellinger, M. F. (2014). Rethinking «Fuerza Mayor» in a World of Anthropogenic Climate Change. Derecho & Sociedad, (42), 45–78. Retrieved from https://revistas.pucp.edu.pe/index.php/derechoysociedad/article/view/12466

Issue

No. 42 (2014)

Section

Medio Ambiente

License

Copyright (c) 2016 Derecho & Sociedad

Creative Commons License

This work is licensed under a Creative Commons Attribution 4.0 International License.