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The novel coronavirus pandemic is causing unprecedented damage to human health as well as business operations around the world. As the impact continues and economic fallout mounts, more industries will be impacted; the lockdowns and restricted movements are likely to continue in the foreseeable future.

Consequently, companies need to assess not only their own, but also their counter-parties’ contractual rights, obligations and remedies in case of delayed performance, or when it becomes difficult or impossible to carry out contractual obligations. A careful analysis of the rarely invoked “force majeure” clause is critical in these uncertain times.

As per the Black Law Dictionary, the term “force majeure” is “an event or effect that can neither be anticipated nor controlled. It is a contractual provision allocating the risk of loss if performance becomes impossible or impracticable, especially as a result of an event that the parties could not have anticipated or controlled.” These may include events such as acts of God, war, terrorism, earthquakes, hurricane, as well as acts of Government, fire, plague, or epidemic. Where the term epidemic or pandemic has been used, that will clearly cover Covid-19.

In line with the laws of many states, the clause of “force majeure” will be triggered only where the clause explicitly includes contingent event. Where a force majeure clause clearly uses terms such as “diseases”, “epidemic”, “pandemic”, “act of government” or “state of emergency”, depending on the enlisted circumstances, parties will assert force majeure as a defense to non-performance or anticipatory breach in cases related to the Covid-19 pandemic.

Act of God?

The burden of proving an event was beyond their control and did not happen because their fault or negligence lies solely with the parties seeking to assert the clause of force majeure. The burden of proof will not be difficult in the contracts that list out specific events like viruses, epidemics, or pandemics. But implementation may get complicated when the force majeure clause is not explicit and simply uses the term “Act of God” which can act as a boilerplate for many force majeure clauses.

Nearly all attempts to define the phrase “Act of God” use words such as “extraordinary,” “unusual,” “sudden,” “unexpected,” “anticipated,” or “grave.” The appearance of one or more of these adjectives in almost every definition reflects the requirement that for a casualty or phenomenon to qualify as an “Act of God”, it must have been so unusual or abnormal that it could not have been predicted or anticipated.

It will be interesting to see how courts will ultimately determine that Covid-19 is an “Act of God”. Expect many court filings in the months and years ahead to echo the sentiments of the World Health Organization Director-General Tedros Adhanom, who recently said: “We are in unchartered territory. We have never before seen a respiratory pathogen that is capable of community transmission, but which can also be contained with the right measures.”

As the coronavirus pandemic brings unprecedented challenges, it’s also sure to disrupt countless contractual relationships. Parties should therefore be ready to invoke and defend against force majeure clauses and related doctrines that may arise to excuse performance.

The author is an advocate

[email protected]

A few nights ago, I heard a young child talking with a man outside my lane. The voice of the child was rough, like she was from the villages and hadn’t been educated. The man was laughing occasionally in the casual manner of the laborers who still lived in the giant big building that has been constructed in front of our house as an investment property. Built for $600,000, it is now empty, with no renters coming forward to pay the rumored 10 lakh rupees per room. But a group of young male workers are still living there, no doubt guarding the property. Every evening, I hear beautiful flute music from the same building. But this evening, I heard the voice of an angry young woman who was coercing the child to do something she didn’t want to. The child started to cry hysterically. The man laughed. Then they left.

I have done research in Mumbai and I know child prostitution runs beneath the layers of Nepali society, where family members and guardians often become the enablers of sexual exploitation. While I cannot say with certainty that is what occurred near my house, it disturbed me tremendously. How many women and children are now at the mercy of predatory men, with the income earned from casual, informal work having come crashing down?

The government of Nepal, unlike Western countries, has no social safety net that can protect teenage girls and children. They have no provisions for women who are now out of work—the five kilos of rice, some dal and a few packets of cooking oil can barely meet the needs of women with young children. A young woman who was helping me to clean my kitchen decided it wasn’t worth her while to stand in line at the ward office for this small amount of food.

“Who wants to wait in line for five kilos?” she said, dismissively. Then she said they would ask for nagarikta, and she’d have to go back to her village to get it. Later that week, I saw another woman in my neighborhood who I know has a young daughter become tremendously upset when she realized she’d need her citizenship to get the food being distributed—clearly she didn’t have it on hand.

Most pandemics of the past went on for 18 to 24 months, if not longer. It is likely that a famine as well as surge of coronavirus cases will follow in the autumn, as temperatures cool and food shortages become apparent. Yet does the government know how much grain we have in stock to feed 28 million people? Can it guarantee that it will have enough for the entire population from 23 September 2020 to 12 April 2022, which according to my (jyotish) calculations, will be the time of greatest death and despair? It may be 17 January 2023 before all deaths stop—that is when, according to jyotish, Saturn leaves Capricorn. Coincidentally—although according to jyotish there are no coincidences—Saturn, which rules death, dying, sickness, grief and despair, entered its own house Capricorn on 25 Jan 25, 2020. On 23 Jan, China shut down Wuhan, and on 30 Jan, the WHO declared a pandemic.

While traditional jyotish timing may not be used for government planning any longer, we can look at linear, Western history of pandemics and realize that deaths come in waves and that it rarely ends in a few months. What is our government’s exit strategy to support millions of young children, vulnerable women, unemployed disabled, and elderly? How will it give financial security to the young men and women in urban areas who are now trapped in their homes? What plans does it have to distribute food, vegetables, and medicines?

Provinces have set up systems to deliver old age-pensions, vegetables, and food to people right at their doorstep. Political representatives more accountable than those in Kathmandu hired buses with their own funds and came seeking for their villagers stranded in the capital, at a time when the sirsha netas had shut down the city with no provisions for people to return home. Thousands were forced to walk home for days, with kind people along the way offering them food and partial transport and in all likelihood saving their lives.

Kathmandu may be the capital city, but most of its local ward administrative units have been decimated by years of politicization, neglect, corruption, and non-accountability. The cellphone message saying, “If you suspect you have coronavirus, go to your local health center,” is a bit of a laugh in Kathmandu, because there are no government-funded local health centers, unless you are talking about the major hospitals. How many unemployed women with toddlers can walk to Shukraraj Hospital?

Perhaps the most chilling development in Kathmandu was seeing the video of little children being bathed in bleach before the local officials would give them free food. A global apparatus of authoritarianism, as epitomized by China, coupled with the bleach-can-heal wisdom of a “science is might and right” America, is squeezing vulnerable children and elderly all across the planet. In order to come out safely, we must resist both.

“Have you read the new Times of India news report on Nepal?” I ask Upendra Gautam of the China Study Center. He hasn’t. I want to know what Gautam makes of a line in the news report where the writer quotes “official and political sources in India” as saying, “India reckons China will be the worse for wear getting in the mud of the never-ending chaos of Nepali domestic politics.” I ask Gautam if India has learned the hard lesson and was now waiting for China to replicate its old mistakes in Nepal. He isn’t happy I start our conversation by quoting an Indian newspaper.

“You quoting an Indian report shows how Nepalis tend to unnecessarily invoke India-China geopolitical rivalry,” he answers. Why can’t Nepal handle India and China separately? I get what Gautam is getting to. Perhaps I should not have quoted the TOI report right off the bat. But, surely, the Chinese envoy went overboard in meeting so many top NCP leaders and urging them to keep the party united. And what about Xi personally calling President Bhandari, supposedly to sort out the party dispute?

“You have it wrong, it was rather Bhandari who called Xi. So far as the Chinese envoy meeting top NCP leaders of the ruling coalition is concerned, it is natural for China to want a strong power-center in Kathmandu. China believes in a stable government, whoever is in it,” he says.

Vijay Kant Karna, an old observer of Nepal-India relations, isn’t convinced. “What you see is that Chinese interference in Nepali politics has been increasing steadily since Pushpa Kamal Dahal replaced KP Oli as the prime minister in 2016,” he says. The latest Chinese maneuverings leave no doubt in Karna’s mind that China is interested in managing “the internal politics of Nepali parties as well as the government.”

He also doesn’t buy that it was President Bhandari who wanted to talk to Xi rather than the other way around. “My understanding is that Xi called when the legwork of the Chinese envoy in Kathmandu was inadequate to achieve China’s goal,” he says. So China wants Oli to stay? “Is there any doubt about that?” he retorts.

The backers of China in Nepal see the latest Chinese efforts as a reflection of the way they do diplomacy around the world, and there is nothing sinister about it. They deal with strong power centers wherever they do business. But China skeptics espy a clear-cut case of meddling.

I for one think China’s image in Nepal is still largely positive, thanks to its traditional hands-off approach. The more it is seen as trying to influence Nepali politics, the more it will get into controversy. Even in the past, there have been times when the public tide has turned against the Chinese, for instance when it claimed ownership of Mount Everest in 1960.

The way China is being cornered on the novel coronavirus globally, perhaps Beijing sees no alternative to cultivating smaller powers like Nepal to speak on its behalf on the world stage. And the more it does for Nepal, the greater will be its expectations. India may wait and watch for the time being. But history suggests India will intervene when it feels the Chinese have crossed New Delhi’s self-defined ‘red line’ in Nepal.

The pandemic is killing people across the world and making them jobless, bankrupt, or mentally stressed. But it has also given a break to some lucky ones from their regular busy lives. I hope the readers of this column are reading it in the comforts of their homes.

If nothing has gone wrong, this home lockdown should be a great opportunity to generate good thoughts and work our way toward mental peace. But unfortunately, many of us are over-indulging in social media, filling our minds with all the junk, and dwelling on the gloom. We are only inviting misery for ourselves as we don’t know how to use our minds in the right way.

Praying for quick recovery of all the infected ones, I ask the fortunate ones to make best use of the extra time that has come as a bonus. This is a great privilege that won’t last long, and it is absolutely dumb to waste it on trifles. By pondering on the dearness of human life, we will know the dearness of the moments that build it. We can then set our minds on the right course.

The Buddhist philosophy holds human life extremely precious. There is a famous analogy to explain it: Suppose the entire earth is a big ocean and a blind turtle lives at its bottom. It comes up to the surface once in a hundred years. A wooden yoke with a single hole is floating on the water, drifting wherever the wind and waves take it. Now imagine the turtle emerging on the surface with its head sliding through the yoke. What a great coincidence that would be! With same rarity one gets chance to be born as a human being.

One has to move through different realms of existence, get countless births in one or more of them as per one’s orientation, and earn enough merits to be born as a human, according to Buddhism. These realms number six: gods (deva), demi-gods (asura), humans (manusya), animals (tiryag), hungry ghosts (preta), and hell beings (naraka).

The Buddha said human-realm is the most important among the six. The god-realm is characterized by all the material pleasures one can think of, but then it is afflicted with greed, passion, craving, pride, and attachment. The asuras may also have the material pleasures, and they may possess supernatural powers, but they are characterized by hatred, anger, and arrogance. With deluded minds, both gods and demi-gods cannot see their own bondages.

Only the humans have the intellect to see the sufferings of life, and understand that they could be overcome. The Buddha advises humans to use their capacity to work out their own salvation. He says every human has this capacity, and one should start right away, without wasting a moment of the precious life, to reach the liberating potential of the human mind.

That is great news. Far better to dwell on than the junk many of us keep feeding our minds with.