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ARTICLE · 27 APRIL 2021

Force majeure under stress: disaster tails too fat for infrastructure contracts?

Corrs Chambers Westgarth
Corrs Chambers Westgarth
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Corrs Chambers Westgarth

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With climate change, FM clauses will play a prominent role. Review your approach & explore alternatives to address shortcomings.

AustraliaCorporate/Commercial Law

All of a sudden, Australia is being assailed by natural disasters of unprecedented scale – from the bushfires of the 2020 summer to the one in 100 year floods of autumn 2021. With recent heatwaves in Europe, snow storms in Texas and forest fires in California and South Africa, Australia is not alone. Forecasts are for these type of events to only increase in frequency and severity as the consequences of climate change unfold.

These rare but destructive events are examples of 'fat tail' risks. For fat tail risks, ruin is more likely to come from a single extreme event than from series of bad episodes. Fat tail risks are not more frequent, they are more consequential.

Contracts work well regulating and coordinating parties in the ordinary course of providing and paying for goods and services, but they struggle with extreme circumstances. This is particularly the case for long-term infrastructure contracts where the stakes are high and losses are calculated in the

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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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