About a week ago, I read a brief article about Continental Resources declaring force majeure on an oil delivery contract in the Bakken due to COVID-19. The report stated that Continental Resources could not have foreseen the dramatic drop in prices caused by COVID-19 and that selling oil at negative prices constitutes waste and therefore could not deliver oil to the refinery.
After reading this article, I decided to do some research on force majeure to understand it's potential impact during the COVID-19 crisis.
According to Wikipedia, force majeure is a common clause in contracts that essentially frees both parties from liability or obligation when an extraordinary event or circumstance beyond the control of the parties, such as a war, strike, riot, crime, epidemic or an event described by the legal term act of God, prevents one or both parties from fulfilling their obligations under the contract.
In other words, if an unforeseeable or uncontrollable event occurs that makes it impossible for a party to meet its contactable obligations, this could be considered a force majeure event and the party may be excused from completing their obligations.
Let's consider the NBA before looking at the oil and gas industry. COVID-19 had an impact on the NBA when the suddenly cancelled a game in Oklahoma City just before it was set to start. Rudy Gobert had tested positive for COVID-19 and the league cancelled the game and then suspended the season. They were quickly followed by the NHL and the rest of the USA after that.
The NBA has a force majeure clause in their agreement with the NBA Players Association and they specifically mention epidemics as one off the events that would trigger the force majeure clause. The Collective Bargaining Agreement (CBA) states that the league can withhold nearly 1% of the players salaries per cancelled game if a force majeure event is triggered. It also states that it can cancel the entire CBA due to the event. It's unlikely that the NBA would cancel the CBA but they have very specific language in their contract about their response to force majeure events.
The link to the NBA force majeure clause, Section 39.5 can be found at the following link.
On April 17 2020, the league and the union came to an agreement that they would reduce the remaining salaries by 25% starting in mid-May. This will impact the remaining games for the 2019-2020 season. It's unclear if they will restart the season and have playoffs at this moment.
In the oil and gas industry, Force Majeure is a common clause in many Master Service Agreements (MSA). If you have had the opportunity to review a MSA, you will likely come across a section titled Force Majeure and it will list all of the potential issues that could be considered force majeure. Most oil and gas MSAs include acts of war, civil unrest, industry strikes, federal or state regulation changes and acts of God (which usually means earthquake, flood, fire, hurricane, etc). Very rarely do they include anything related to epidemic or pandemics
While the definition of force majeure frees parties of liability, it usually means during the period the event is happening and both parties need to work towards limiting the impact of the event. If the contract cannot be completed due to the force majeure event, then the contract may be cancelled without penalty to either side. The clause cannot be invoked due to negligence or inability to meet contract standards.
Does this mean that the entire oil and gas industry will be able to declare force majeure to exit or suspend unattractive contracts? The short answer is most likely not. The devil is in the details and the language of the force majeure contract will determine how the clause is invoked.
(Note: I am not a lawyer and I am not offering any legal advice. The following is a summary of several different discussions I have read about force majeure. Consult an actual lawyer for advice)
After reviewing several different law websites, here is the basics of utilizing force majeure
1: Determine if your MSA contains language that could be related to the impact of COVID-19. Most MSAs are clear about war, strikes, civil unrest, etc. but are vague on pandemics. If there is a reference to act of God (meaning a natural event outside of our control) or government actions (ie shelter in place mandates, reduced international travel, closed borders) then this may be deemed a force majeure event.
2: Determine how your activities were impacted related to COVID-19 events. Most clauses state that the activity was hindered, delayed, impossible or impracticable to complete. A company will have to demonstrate that their business was significantly impacted by a force majeure event. This could include a lack of staff or supply chain issues due to shelter in place orders. It may not be a force majeure event when performance is more expensive or inconvenient, the clause usually requires performance to be impossible to complete.
3: Document events and notify the other parties in the contract. Once a company has determined that they are impacted by a force majeure event, they need to document their case and notify the other party of the contract. If the other party doesn't agree and they choose to go to court, documentation is a must.
While the NBA has clear language in their agreement on how to deal with epidemics/pandemics, most oil and gas companies do not. It's clear that, with sports suspended due to COVID-19, it is impossible for the NBA to provide players to play. Most oil and gas companies have terms in the force majeure section that are open to interpretation and it is likely that they won't be able to use this clause during this crisis. I would expect that MSAs will have specific language associated with pandemics from now on.