The consequences of the COVID 19 pandemic on every aspect of life are almost unavoidable. In this series of Q&A, the HCLA legal team addresses a number of issues that arise in the context of current patterns of behaviour and interaction at the global level.
Q: Sending communications by registered mail is generally the preferred means of exchange between parties to international transactions. However, in times of global crisis, when the delivery of cross-border mail becomes a challenging task, could a court or tribunal possibly accept other forms of notification such as e-mail?
The principle of “Pacta sunt servanda” dictates that all clauses of an accord have the force of law between the parties and implies that the non-performance of the respective contractual obligations is a breach of the covenant. Therefore, all notices and communications must be served in a way that has been acknowledged by the parties. Nevertheless, where it is not possible to perform all the terms and conditions stipulated in a contract, such as the means of giving notice, the parties must take into account the implicit covenant of good faith and fair dealing in international transactions.
When, due to an unforeseeable and irrepressible event, the contractual means of notice becomes impossible, a court or tribunal may recognize the use of other ways of delivery, such as e-mail instead of registered mail. Indeed, the method of notification is only a means to an end, whereby the parties inform each other of any changes or other developments in a contract. Thus, a judge or arbitrator can decide to deal with the situation and appreciate the flexibility of the parties in fulfilling their contractual obligations rather than having an overly restrictive approach limited to the contractual text. Therefore, a party may serve a notice by e-mail, provided that:
- The situation is extremely unusual, such as a pandemic or other force majeure event, affecting the parties’ respective ability to serve the notice;
- The party sending the notification shall act in good faith and shall be able to verify that the receiving party has received the information in a legible form;
- The recipient party confirms the receipt of the notice.
Nevertheless, the decisions of courts and tribunals may differ from case to case, and the extent to which this solution is adopted depends on how the parties’ ability to serve notifications has been affected by a particular event.
This piece is part of the HCLA’s Q&A program and does not, therefore, constitute the official opinion of HCLA. If you have any questions or comments, please do not hesitate to contact the HCLA team via legal@hclanl.com
