Tepco invokes ‘Act of God’ clause on Cameco deal, but it seems more like a Hail Mary – by Drew Hasselback (Financial Post – February 15, 2017)

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Tokyo Electric Power’s move to pull the plug on an agreement with Canadian uranium miner Cameco Corp. is the latest example of a company arguably stretching the traditional use of a force majeure or “Act of God” clause to suspend a contract.

Tokyo Electric Power Co. Holdings Inc. argues that it has been unable to operate its nuclear power plants in Japan because of government regulations enacted after the 2011 Fukushima nuclear disaster. The accident was caused by an earthquake and resulting tsunami. Centuries of legal tradition should easily place those natural disasters within anyone’s definition of Acts of God.

You probably can’t say that for government-made regulation, though Tepco’s obvious point is there wouldn’t be regulation but for those preceding Acts of God. Maybe it is legally possible to say those natural disasters started a chain reaction of unforeseeable events, including more government regulation. It depends on the wording of the force majeure clause in the contract between Tepco and Cameco.

For now at least, Cameco won’t disclose the wording used in the clause. “It does contain provisions when force majeure and other defences can be taken advantage of, but I don’t think we’ll get into any more detail right now,” said Sean Quinn, senior vice-president and chief legal officer of Cameco, during a conference call earlier this month.

“We don’t think this is a situation that falls into any of the categories that would excuse Tepco.” A force majeure clause is supposed to absolve a party from executing on an agreement due to circumstances beyond the control of the parties.

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