Lawyer Monthly - April 2022

EXPERT INSIGHT 62 WWW.LAWYER-MONTHLY.COM | APR 2022 has always been paramount and the respective provisions are usually the hardest negotiated clauses. In light of the COVID-19 pandemic, the appetite for limitation of liability has of course become greater on the side of the supplying parties. For example, suppliers of goods wish to exclude (or at least limit) their liability for raw material shortages, closures of factories or delayed deliveries. On the receiving side, it is exactly the opposite. The recipients want to ensure that they receive the goods or services as agreed and that the supplying party takes all necessary measures to overcome COVID-19related obstacles. In many cases, however, a somewhat balanced solution serves a good cooperation best. With regard to the COVID-19 pandemic, it is usual to allocate the respective risks and limit (or exclude) liability by insertion of specific provisions in the contract that deal with the non-performance or delay in performance due to such events. This is often done by way of so-called force majeure clauses. Force majeure clauses typically excuse non-performance by a party of its contractual obligations where such non-performance is caused by a defined force majeure event (ideally explicitly including the COVID-19 pandemic). They further provide specific remedies or consequences (e.g. termination rights or obligations to re-negotiate the contract in good faith) if the force majeure event lasts for a defined period of time. Do you foresee any significant changes in Swiss contract law or the limitation of liability on the horizon? Overall, Swiss (contract) law is very stable. Yet there are, of course, new challenges on the horizon. Take for example the increasing use of artificial intelligence, machine learning and big data and the question of who is liable for damages caused by artificial intelligence. The existing general principles of liability need to be stretched or even over-stretched to provide answers. The situation regarding liability can thus be unclear and the parties are advised to contractually set out their respective responsibilities and liabilities. Currently no formal change to the Swiss Code of Obligations is decided or planned in this respect, but Swiss courts will certainly, based on the general principles of law, modernise and further develop the general principles of Swiss contract law. About Andrea Haefeli Andrea Haefeli is a counsel at Walder Wyss Ltd, one of the leading Swiss commercial law firms. She advises clients in all areas of contract, commercial and corporate law. Andrea has profound knowledge of and extensive experience in commercial and contract law across various industries. Her key areas include sales and supply, manufacturing and other works, distribution and franchising, agency, service, rental and leasing, development, license, joint venture and cooperation agreements, IT contracts and General Terms and Conditions (GTC). She advises on such projects from the conceptual, drafting and negotiation phase to dispute settlement. Andrea Haefeli Counsel, Walder Wyss Ltd Seefeldstrasse 123, PO Box 8034 Zurich, Switzerland Tel: +41 58 658 58 58 Mob: +41 58 658 56 71 Fax: +41 58 658 59 59 E: Overall, Swiss (contract) law is very stable. Yet there are, of course, new challenges on the horizon.

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