Force majeure clauses: lessons from recent global crises

Force majeure clauses have long been seen as a formality — a standard boilerplate reference to “unforeseeable circumstances.” But recent global events have changed that perception entirely. The pandemic, wars, sanctions, and climate disasters have triggered a wave of legal disputes and forced companies to revise their contracts. According to LexisNexis, online interest in force majeure skyrocketed after the COVID-19 outbreak, reaching a total of 13.5 million related search queries. But only half of the largest joint venture agreements contain clearly defined force majeure provisions. Courts and arbitration panels around the world have faced a flood of claims seeking relief from liability. In this article, we explore how recent crises have tested traditional force majeure wording, what common drafting mistakes to avoid, and how to adapt these clauses to reflect emerging risks.

What is a force majeure clause?

A force majeure clause is a contractual provision that releases one or both parties from liability for failing to perform their obligations when such failure is caused by extraordinary and unavoidable events. It does not terminate the contract but rather suspends performance temporarily or allows for certain adjustments to the terms. Classic examples of force majeure events include natural disasters (such as floods or earthquakes), wars, strikes, terrorist acts, and government-imposed restrictions.

However, the enforceability of a force majeure clause heavily depends on how precisely it is drafted. If the contract fails to specify the applicable events or lacks a clear notification procedure, a court may refuse to recognize the situation as force majeure. Another critical factor is foreseeability: if a party could have reasonably anticipated the event and taken precautions, relief from liability may be denied.

Regulation across jurisdictions

The treatment of force majeure varies significantly depending on the legal system. In civil law countries (such as France and Germany), the concept of force majeure is codified in national legislation. For example, the French Civil Code allows for exemption from liability when an event is irresistible, unforeseeable, and external to the parties.

In common law jurisdictions (such as the United Kingdom and the United States), force majeure must be expressly provided for in the contract; otherwise, it does not apply. English law, in particular, does not recognize implied force majeure, and courts interpret the provision strictly according to its wording. This is why contracts governed by English law require especially careful legal drafting of force majeure clauses.

Global crises that tested force majeure clauses

Recent global events have compelled legal professionals to revisit traditional force majeure language. Courts and arbitral institutions have been presented with hundreds of cases addressing whether specific events could truly be considered “unforeseeable” and “unavoidable.”

The COVID-19 pandemic

The coronavirus pandemic had an unprecedented impact on the global economy and international contracts. Manufacturing facilities were shut down, transport systems were suspended, and governments imposed restrictions that rendered contract performance impossible.

Many supply chains collapsed due to lockdowns and travel bans, particularly in industries dependent on global logistics, from electronics to automotive.

It is now essential to explicitly reference terms such as epidemics, pandemics, government-imposed restrictions, sanitary measures, and mobility limitations in contracts. Without such language, invoking force majeure becomes extremely difficult.

In response to the pandemic, the International Chamber of Commerce revised its standard force majeure and hardship clauses in March 2020 to include references to epidemics, currency restrictions, and trade sanctions. According to ICC data, more than 700 arbitration cases in 2020-2022 involved COVID-19 as a potential force majeure.

The war in Ukraine and sanctions

The war in Ukraine and the resulting international sanctions also posed significant challenges to contractual performance, especially in the logistics, energy, and finance sectors.

Transport of goods from and through Russia and Ukraine dropped sharply. Ports were blocked, and traditional trade routes were disrupted. Sanctions targeting Russian banks and individuals on OFAC’s SDN List and the EU’s restrictive measures list made it impossible to execute payments and deliveries.

Importantly, mere economic hardship — such as surging gas prices — is not sufficient to trigger force majeure unless explicitly stated in the contract. Well-drafted clauses should reference sanctions, regulatory prohibitions, and war-related disruptions, particularly in cross-border agreements involving high-risk jurisdictions.

Extreme climate events

Climate-related disasters are becoming increasingly common, and they can disrupt contract performance just as severely as wars or pandemics.

1. Infrastructure damage. Heavy rains and flooding may prevent delivery or production. For instance, flooding in Germany in 2021 caused billions of euros in supply chain disruptions.
2. Natural disasters as force majeure. Courts will recognize such events as force majeure if there is a clear and direct link to non-performance.
3. Climate-related compliance. New contracts increasingly include climate-specific force majeure language covering regulatory measures, carbon compliance, and insurance triggers.

According to Swiss Re, global insured losses from natural catastrophes exceeded $108 billion in 2023, with $64 billion attributed to extreme weather events like convective storms.

Common pitfalls in force majeure clauses

A force majeure clause is not just boilerplate language — it is one of the most important legal safeguards available to contracting parties. However, many contracts still contain outdated or generic provisions that fail under real-world scrutiny. Below are the most common drafting mistakes identified in recent dispute trends.

Overly generic wording

One of the most frequent issues is the use of vague catch-all phrases such as “acts of God” or “any event beyond the control of the parties.” Such language offers little protection, particularly in jurisdictions that interpret contract terms strictly. Courts increasingly expect parties to clearly define which events qualify as force majeure.

Lack of specific event listings

If the clause does not explicitly mention risks such as pandemics, sanctions, cyberattacks, or environmental disasters, a party may be denied relief, even if the event is truly extraordinary. Modern force majeure provisions must reflect today’s realities: global viral threats, geopolitical instability, climate risk, and cyber incidents. Clauses should include a detailed and industry-relevant list of potential triggering events.

Failure to include notification procedures

Many clauses lack a clear protocol for what to do when a force majeure event occurs, such as deadlines for notification, the required form, and supporting documentation. This legal ambiguity can result in a party losing its right to invoke the clause. We strongly recommend including a provision requiring written notice within a specific period (e.g., five business days from the occurrence of the event).

No distinction between suspension and termination

Another critical omission is the failure to specify the consequences of a force majeure event: whether performance is temporarily suspended, partially adjusted, or permanently terminated. Without these distinctions, parties may not know how to proceed, and courts may struggle to interpret intent. For example, if the contract lacks a partial delivery clause, one party may suspend all performance, even if most obligations could still be fulfilled.

Drafting better force majeure clauses post-crisis

The past few years have made one thing clear: a force majeure clause must be adapted to modern realities. Otherwise, it not only fails to protect the contract, it may even create additional legal risks.

Be specific

Generic phrases like “unavoidable circumstances” or “beyond the parties’ control” are no longer sufficient. Contracts must list concrete examples of force majeure events relevant to the specific industry and region. For example:

1. In logistics: port closures, blocked trade routes, transport sanctions;
2. In IT: cyberattacks, data center outages, cloud service disruptions;
3. In manufacturing: export/import bans, shortages of critical components.

Include a catch-all provision with limits

It’s wise to include a catch-all clause for unforeseen risks not explicitly mentioned, but it must be carefully limited to avoid abuse. For instance: “…or other events beyond the reasonable control of the parties, provided that they render performance impossible or unlawful”. This prevents a party from invoking force majeure for events like price fluctuations or decreased market demand.

Add clear procedures

Set out how a party must act when invoking force majeure:

1. Notice period (e.g., 5–10 business days);
2. Method of notice (email or registered mail);
3. Required documentation (government orders, expert opinions);
4. Evidence of reasonable efforts to mitigate the impact.

Such provisions create a clear evidentiary record in the event of a dispute and demonstrate the party’s good faith.

Address partial performance

Often, force majeure affects only part of a party’s obligations (e.g., reduced supply quantities). The contract should allow for:

1. The right to partial performance;
2. Flexibility to adjust timelines or terms;
3. Assessment of how the changes affect reciprocal obligations.

This is particularly important for long-term or phased contracts.

Consider alternative remedies

Force majeure should not always lead to termination. Consider tiered options:

1. Suspension: temporary relief without ending obligations;
2. Renegotiation: opportunity to adjust quantities, deadlines, or pricing;
3. Termination: a last resort, to be used only if no other solution is possible.

Specify in the contract who may make such decisions (unilaterally or by mutual agreement), how they must be communicated, and what the legal consequences are.

How Key2Law can help revise force majeure clauses in your contracts

The Key2Law team helps businesses adapt their contractual provisions to current global realities and minimize potential risks. Our services include:

1. Reviewing existing contracts to assess the clarity and effectiveness of force majeure clauses;
2. Drafting tailored language that reflects industry-specific and jurisdictional risks;
3. Updating contract templates for use in future transactions;
4. Providing analysis of disputes involving force majeure, including sanctions-related cases, pandemics, and climate-related disruptions;
5. Advising on applicable law and arbitration practices across different jurisdictions.

We understand that protection must go beyond boilerplate wording - it must offer real, enforceable safeguards. Contact Key2Law to ensure your contracts are resilient in the face of the next crisis.