CYIL vol. 15 (2024)

CYIL 15 ȍ2024Ȏ VIS MAJOR AND HARDSHIP IN INTERNATIONAL TRADE: A STUDY OF THE CISG … In the first quarter of 2024, the author contacted more than fifty Czech companies that fit the pre-defined profile, and twenty-two agreed to the interview over the phone, online, or in person. The respondents were represented by their in-house lawyer or senior management (sales/export director, board member, etc.). Respondents were asked to consider only the period 2020-2023. All information provided during the interviews is confidential/sensitive and data were anonymized by aggregation and by use of generic references (“R1” …). To avoid any risk of identification, details regarding the production will not be used beyond basic information whether the production is based on a catalogue/series of the same product or whether it is custom-based. The interviews were conducted in the Czech language, any direct quote is thus the author’s translation. The full list of respondents follows:

large, manufacturing, catalogue/series large, manufacturing, custom-made large, food industry, catalogue/series large, manufacturing, catalogue/series large, manufacturing, catalogue/series large, food industry, catalogue/series medium, engineering, custom-made medium, manufacturing, catalogue/series medium, manufacturing, catalogue/series medium, manufacturing, catalogue/series medium, manufacturing, catalogue/series

medium, manufacturing, catalogue/series medium, engineering, custom-made medium, manufacturing, catalogue/series medium, manufacturing, catalogue/series small, engineering, custom-made small, manufacturing, catalogue/series small, manufacturing, catalogue/series small, manufacturing, catalogue/series micro, manufacturing, custom-made micro, manufacturing, catalogue/series micro, manufacturing, custom-made

R1 R2 R3 R4 R5 R6 R7 R8 R9

R12 R13 R14 R15 R16 R17 R18 R19 R20 R21 R22

R10 R11

4.2 Respondents with no experience with vis major and hardship situations The grey highlights in the table above mark companies with no experience with contractual non-performance (the indifferent respondents ). They have noted negative developments, but these were either market-related (lower demand from customers) or described as ordinary issues (delayed supply) that do not require any specific approach. Notably, all indifferent respondents use contracts favoring maximum flexibility, usually entirely without guaranteed/ required delivery and with pricing based on price lists which can be unilaterally changed at any time. Specific orders were also often placed and confirmed only shortly before delivery, which also eliminated room for interference of external factors. Finally, indifferent respondents mostly produced catalogue/series goods, where produced amounts could be flexibly adjusted or potentially re-sold in case of issues with a particular customer (although such a situation was not directly reported). On the other hand, the two indifferent respondents with custom made production (see the darker shade of grey) were hard-to-replace specialists in their fields who were able to leverage their position accordingly. When asked about their opinion at least in theory (since there was no practical experience), the indifferent respondents considered vis major situations as something remote and solvable by insurance. Their consideration of the hardship regulation was more interesting. Regarding Section 1765 Civil Code 2012 (the Czech Hardship Rule ), the indifferent respondents either had no recollection of the regulation (R3, R21, R22) or had negative opinions thereon. In the latter case, they considered the application of the Czech Hardship Rule as damaging

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