CYIL vol. 15 (2024)

CYIL 15 ȍ2024Ȏ VIS MAJOR AND HARDSHIP IN INTERNATIONAL TRADE: A STUDY OF THE CISG … and the change thus happened at once thanks to a larger private law reform. The issue to be solved is a hardship threshold and here the CISG now can serve as guidance for Czech courts. Considering the issue from the perspective of Czech exporters and their reported experience, the current solution does not seem to be ideal. When faced with a vis major situation, the respondents ultimately had to attempt renegotiation of the agreement as standing by and waiting for the obstacle to disappear would otherwise cost them additional damage. When faced with hardship, the parties were able to negotiate but usually thanks to having some purely commercial leverage of their own which ultimately forced the other party to agree to proposed changes. Therefore, if the contractual partner of the aggrieved party had a stronger economic standing, attempts at renegotiation were usually unsuccessful. 75 While it may seem that there is some ideal “hybrid” solution missing (e.g., excuse from liability covering both vis major and hardship situations, combined with the requirement of good faith renegotiations to minimize their negative effects), it is fair to say that Czech commercial practice has been able to find its way through the woods by depending predominantly on the business solutions. Interestingly, the legal work only now follows as Czech exporters are in the process of setting new contractual standards for both vis major and hardship – no doubt inspired by their many recent experiences.

75 That is a bit of a paradox, since one of the main arguments for hardship regulation is a protection of a weaker party. See FIROOZMAND, M. R. and ZAMANI, J. (2017) ‘Force majeure in international contracts: Current trends and how International Arbitration Practice is responding’, Arbitration International , 33(3), p. 409, doi:10.1093/arbint/aix021.

313