Force Majeure In Khmer

[Rebecca Donnelly]

The World Health Organisation declared the novel coronavirus (Covid-19) outbreak a pandemic on March 11. Following this declaration, the Ministry of Health and other ministries have taken various legal and administrative measures to prevent the rapid spread or import of Covid-19 into the Kingdom.

The government, including the ministries of Health; Education, Youth and Sports; Tourism, and Interior, have instructed public and some private schools, private businesses such as KTV, beer gardens, and other entertainment outlets to close.

Other institutions were instructed to arrange for staff to work from home, etc. The government encourages social distancing among people by urging them to stay home and only go out when it is absolutely necessary.

As a result, businesses which have been instructed to close are effectively closed. Yet, some other businesses which are not directly subject to the closing order from the government would also probably be shuttered soon for various reasons.

These include the insufficient supply of raw materials, lack of market demand for their products and services, the inability to trade due to border closures, prevention of incoming and outgoing flights, the partial or full lockdown of a country, and more.

As of now, more than 50 garment factories have been allowed to suspend operations. Some hotels and restaurants have closed too, while public and private schools are told to provide online education instead of the traditional brick and mortar sessions.

The above legal and administrative instructions from the government and the risk of Covid-19 infection could cause the non-performance or compliance of some contracts either partially or in its entirety.

In any case, an event capable of being claimed as force majeure shall be beyond the reasonable control of the affected party, the ability of such party to continue to perform the contract has been prevented, impeded or hindered, and he has taken all reasonable steps to mitigate or avoid such event or its consequence but it is not possible to overcome such event.

The event of force majeure could be a political or non-political event, an unexpected change of legal and regulatory environment or natural catastrophe which makes the performance of a contract impossible.

It should also be noted that Cambodia has adopted the civil law tradition, hence, the application of force majeure as an excuse for breach of contract may not be identical with the application of this concept under English law or other common law jurisdictions.

A force majeure clause is common in contracts. It essentially frees both parties from liability or obligation when an extraordinary event or circumstance beyond the control of the parties occurs, such as war, strike, riot, crime, pandemic, epidemic, flood, earthquakes, an act of god, etc.

In practice, the contents of the force majeure clause could be brief or quite descriptive. Some contracts include a force majeure clause while others have none. In the latter case, the affected party could rely upon the provisions of law governing his or her contract to claim the event of force majeure.

It is not always the case that due to the event of force majeure, all performances of obligations become impossible or stop. For instance, in a loan contract, the borrower may not be released from paying the principal and interest during the occurrence of force majeure.

However, the borrower may not be obligated to pay damages or penalty for the delay in payment. In case of perpetual lease of immovable properties, the lessee may terminate the lease if he cannot generate any profit from the lease for a period of three years due to the occurrence of force majeure.

Engage and discuss with contracting partners, business partners and related competent authorities in order to express your concerns, to clarify the application of legal and administrative instructions, to take necessary action to protect and mitigate the risks, damages and any unintended consequences caused by the change of laws and administrative orders by competent authorities.

The above views are that of the author, and intended purely as general information only. The Post shall not be held responsible for any unintended damages suffered because of the views expressed in this article.

In the course of the COVID-19 pandemic, suppliers and other parties to commercial arrangements with government agencies may exercise rights under force majeure clauses. A force majeure clause is a contractual method by which parties seek to manage the impact of events beyond their reasonable control.

Informed by lessons of the past, Department of Communities and Justice is improving how we work with Aboriginal people and communities. We listen and learn from the knowledge, strength and resilience of Stolen Generations Survivors, Aboriginal Elders and Aboriginal communities.

Article 311 of the Civil Code stipulates that a contract is the act in which two or more persons are willing to agree to create, modify or cancel an obligation. This provision of the Civil Code is adopted in accordance with the principle of freedom of contract. Therefore, the parties to the contract can include clauses on force majeure in their contract. That is, the parties to the contract who wish to protect themselves from liability for non-performance of the contract due to reason of force majeure may determine in their contract the events to be considered as force majeure and the agreed means of relief or settlement in the occurrence of such force majeure.

According to the glossary of the Civil Code, force majeure refers to event that occurs against the will of the party, unpredictable and unpredictable and invincible. Accordingly, force majeure can be a naturally occurring event or an unnatural event as long as that event meets the following conditions:

What does the law say if the parties do not determine the means of relief or remedy for the parties affected by the force majeure in the contract? To answer this question, one has to look at the legal provisions for each case.

For example, Article 398, paragraph 1 of the Civil Code provides that if the debtor fails to perform the obligation, the creditor may claim compensation for damages incurred due to non-performance of the obligation. However, if the debtor proves that he or she has no fault for non-performance of the obligation, the debtor is exempted from liability for compensation.

Further, Article 399, paragraph 1 of the Civil Code provides that if the subject of the obligation is the payment of money, the obligor is not exempted from payment of interest for any delay even if the obligor proves that the delay in payment is the result of force majeure. The interest for the delay is calculated based on the legal rate of interest. If interest rate agreed by the parties is higher than the legal interest rate, the agreed interest rate must prevail.

By resolution 52/135 the General Assembly requested me to examine the request of the Cambodian authorities for assistance in responding to past serious violations of Cambodian and international law, and those committed by the Khmer Rouge, in particular, and to that end to examine the possibility of appointing a Group of Experts. I accordingly appointed a three-member Group of Experts to evaluate the existing evidence with a view to determining the nature of the crimes committed by Khmer Rouge leaders in the years 1975-1979; to assess the feasibility of their apprehension; and to explore legal options for bringing them to justice before an international or national jurisdiction.

On the basis of a review of the material and documents made available to it, the Group of Experts concluded that the evidence gathered to date testifies to the commission of serious crimes under international and Cambodian law, and that sufficient physical and witness evidence exists to justify legal proceedings against the Khmer Rouge leaders for those crimes. It considered that the crimes committed by Khmer Rouge leaders during the 1975-1979 period included crimes against humanity, genocide, war crimes, forced labour, torture and crimes against internationally protected persons, as well as crimes under Cambodian law.

The Group of Experts analysed the following legal options for bringing Khmer Rouge leaders to justice: a tribunal established under Cambodian law; a tribunal established by the Security Council or the General Assembly as an ad hoc international tribunal; a mixed option of a Cambodian tribunal under United Nations administration; an international tribunal established by a multilateral treaty and trials in third States.

Having considered the report, the Government of Cambodia, in a letter addressed to me dated 3 March 1999, cautioned that any decision to bring Khmer Rouge leaders to justice must take account of Cambodia's need for peace and national reconciliation, and that, if improperly conducted, the trials of Khmer Rouge leaders would create panic among other former Khmer Rouge officers and rank and file and lead to a renewed guerrilla war. At a meeting I held on 12 March with the Minister for Foreign Affairs and International Cooperation of Cambodia, Hor Namhong, he conveyed to me his Government's view that, on the basis of article 6 of the Convention on the Prevention and Punishment of the Crime of Genocide and article 33 of the Cambodian Constitution, the Cambodian courts were fully competent to conduct any such trial. He recalled that the criminals are Cambodians, the victims were Cambodians and the crimes were committed in Cambodia. The Foreign Minister therefore informed me of his Government's decision to put on trial Ta Mok, the former Khmer Rouge military commander of the south-west region and a member of the Standing Committee, before a Cambodian court under Cambodian law, and to accept foreign assistance and expertise to that end.

This report is submitted to the General Assembly and the Security Council, as the implementation of the recommendations contained therein call for action by either or both organs. But while the mandate of the Group of Experts emanated from the General Assembly, members of the Council will recall that the initial Cambodian request for United Nations assistance in bringing Khmer Rouge leaders to trial was submitted by me to both organs (A/51/930-S/1997/488), and that subsequently I informed the Council of the establishment, mandate and composition of the Group of Experts.

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