We are aware that some productions are invoking ‘force majeure’ provisions, and using this to seek to justify suspending productions that are impacted by the US strike action.
What is ‘force majeure’ and what does it allow for?
Force majeure events are usually stipulated by a contract as being unpredictable events that fall into natural incidents like earthquakes, floods or fires, and human-created incidents like conflicts, invasions or strikes.
A force majeure clause in a contract usually provides that, where an extraordinary event occurs that is outside a party’s control, the obligations and liabilities under the contract can be varied, either by allowing a short delay in performance, for the affected party to not perform the contract at all and, in some instances, allowing the party to terminate the contract.
There is no single legal definition of ‘force majeure’. A contract may specify a list of uncontrollable incidents or circumstances that would prevent the contract being performed, or simply provide that any event beyond a party’s control will amount to force majeure.
Usually, a force majeure clause in a contract will only relieve the affected party of its obligations where performance of its obligations is imposed, or it is unable to perform the contract rather than simply being hindered or delayed. In addition, the events must be the sole reason, and not one of many reasons, as to why the contact cannot be performed.
Does strike action qualify as ‘force majeure’?
Strike action may be considered a force majeure event if it is beyond the affected party’s control, the affected party has taken reasonable steps to avoid it and it is the only reason the contract cannot be performed (plus, the affected party must be willing to perform the contract in the absence of the force majeure event).
Bectu has sought legal advice on the application of force majeure on productions in the UK affected by the current US strike action. In accordance with the law, producers can invoke the force majeure provisions to cover strike action, even when this action emanates in another country. If you work on a production where force majeure has been invoked and have questions, you can contact lpd@bectu.org.uk for advice.
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