Winning Against Force Majeure: Our Recent Case Victory involving a 90s Rock Band

Our firm recently won an interesting case involving a famous 90s rock band.

We acted for the agency of the band, who had entered into an agreement with a concert organizer to hold a series of concerts in various cities in Southeast Asia, including the KL concert scheduled to take place in February 2020 in Kuala Lumpur.

However, the concert organizer was not prepared to proceed with the KL concert, despite having indicated their intention to postpone or assign the concert to third parties since early 2020. By February 2020, the month in which the KL concert was scheduled to happen, the organizer had not undertaken any campaign or ticket sales.

The concert organizer eventually relied on a force majeure clause to postpone the KL concert, citing the COVID-19 pandemic as a reason that allegedly made it infeasible to hold the concert. However, our client rejected this basis, bearing in mind that the government had not implemented any movement control orders in February 2020. As a result, our client deemed the concert cancelled due to the organizer’s material breach. Subsequently, the organizer took legal action to demand a refund of the performance fee previously paid to our client.

The key issue in the case was whether the organizer was entitled to invoke the force majeure clause on the grounds of COVID-19. The High Court agreed with our position that a force majeure clause cannot be invoked solely based on the fear of infeasibility to perform the contract. It has to be based on actual infeasibility. In this case, COVID-19 had not prevented the organizer from holding the concert, and the High Court allowed our client’s appeal, effectively dismissing all of the organizer’s claims against our client.

The case highlights the importance of being careful and seeking proper legal advice before invoking a force majeure clause. Simply relying on this clause to avoid contractual duties puts the party at risk of material breach of contract.

Finally, we congratulate the rock band, MLTR, on their successful concert in Genting Malaysia in October of last year (by a different organiser), and we look forward to their comeback anytime soon.