In recent years, force majeure has re‑emerged from the shadows of boilerplate contract drafting to become a focal issue for those negotiating commercial contracts, following an almost unbroken sequence of global shocks. Brexit, Covid‑19, the Ukraine conflict, shipping disruptions in the Suez Canal and the Red Sea, and increasingly extreme weather have each catalysed a surge in litigation, renegotiation and client demand for clear, cross‑border guidance. Add to that sanctions enforcement, tariff uncertainty and large‑scale outages from cyber-attacks, and it is no surprise that in‑house teams are revisiting their clauses and their playbooks.
The spotlight has fallen on force majeure once more following the escalation of conflict in the Middle East. Whilst we all grapple with the economic and humanitarian consequences of the conflict, we have been approached by clients concerned with protecting their legal position in these difficult circumstances, including through force majeure clauses.
The common thread running through each of these examples is an event beyond the contracting parties’ reasonable control. Where these and similar issues have arisen, clients and their legal teams are likely to spend many hours working through contractual arrangements to consider whether force majeure can be relied on to mitigate liability, to understand the consequences (typically suspension and possible termination if the event persists), and to ensure compliance with relevant notice (and other) obligations. Having surveyed fifty jurisdictions for our new book, Force Majeure: An International Comparative Analysis (co-edited alongside Louis Garb), it is clear that, across supply chains that span multiple legal systems, getting the building blocks right at the drafting stage has become a board‑level issue.
Covid‑19
The fallout from the global pandemic has continued to shape force majeure analysis. Early disputes centred around the exact wording of clauses, including whether “pandemic”, “epidemic”, or “government orders” were expressly mentioned, and how parties evidenced causation between Covid‑19 and their inability to perform. Under English law, wording remains key: there is no free‑standing doctrine of force majeure and broad clauses that once seemed safe were put under intense judicial pressure.
Moreover, the pandemic (like Brexit before it) underscored that increased cost or commercial impracticability almost never suffices under English law: parties must show prevention or a material impediment to performance, not inconvenience.
Supply chains under strain
The Ever Given grounding in the Suez Canal in 2021 exposed the fragility of global trade arteries and triggered intense debate about delay, liability and the limits of contractual relief.
Fast‑forward to 2023–24 and the Red Sea became the next flashpoint. Attacks on commercial vessels forced carriers to reroute via the Cape of Good Hope, drastically extending transit times.
In both cases, there was an increased focus on force majeure clauses. Shippers and commodity traders rediscovered the importance of drafting for war, hostilities, piracy, sanctions, embargo and breakdown of transport, and of stating whether “hinder” or “delay” as well as “prevent” will trigger relief. With the Strait of Hormuz currently experiencing a blockade, force majeure clauses will be front of mind for many stakeholders.
Separately, sanctions overlays have become the proximate cause of many force majeure notices, particularly where payment in a specified currency or via a designated bank becomes unlawful or impossible.
Climate extremes
Extreme weather events – wildfires, droughts, floods and storms – have multiplied in frequency and severity. If parties want to exclude “known seasonal” risks but capture “abnormal” or “extreme” natural events, they should say so.
Equally, if parties wish to exclude “commercial impracticability” language (e.g. so as to limit protection to situations where performance is impossible) this may leave clauses too narrow for climate‑driven disruptions unless “impede” or “hinder” thresholds are included.
English law: “reasonable endeavours” the Supreme Court in RTI v MUR Shipping
Under English law, force majeure remains purely contractual.
The UK Supreme Court’s 2024 decision in RTI v MUR Shipping is now the leading authority. The Court held that force majeure clauses will generally be interpreted as applicable only if the party invoking the clause can show that the event or state of affairs was beyond its reasonable control and could not be avoided by the exercise of reasonable endeavours. The rationale for this principle is one of causation: if a party can reasonably prevent its failure of performance, it cannot say that the force majeure event was causative. Rather, the cause is that party's inadequate response.
Crucially, the Court confirmed that, in exercising "reasonable endeavours", the affected party is not required to accept non‑contractual performance (for example, payment in euros instead of dollars) even if that would avoid the impediment. Certainty, not transactional pragmatism, governs.
Why comparative clarity matters (and why now)
Multinational clients increasingly require fast, reliable guidance across multiple governing laws. This is all the more crucial as the way in which jurisdictions approach force majeure varies: civil law jurisdictions often provide statutory definitions of force majeure and recognise hardship/adaptation; common law jurisdictions rely on drafting; and public law orders and sanctions are treated differently across borders.
With recent geopolitical, economic and environmental turbulence showing no sign of abating, it has never been more important for businesses to understand their potential exposure to these sorts of matters and how their contractual arrangements are set up to address them. History has shown that getting force majeure drafting right at the outset may be critical.
Five questions every GC should ask in 2026
1. Do our clauses specify the events we might actually face? Pandemics, sanctions, cyber/IT outages, extreme weather and transport disruptions should be listed where relevant.
2. What level of impact triggers relief – prevent, impede or delay? Remedies may differ markedly depending on the threshold.
3. Have we defined the parameters of what constitutes contractual performance post‑RTI v MUR? If we want counterparties to accept alternative currencies, banks, routes or supply sources, that must be written in.
4. Do our notice requirements work in practice? Timelines, content and requirements for ongoing updates must align with crisis response.
5. Do our contracts contemplate regulatory disruption (e.g. sanctions and export controls)?
Julian Copeman is a partner and Richard Mendoza is of counsel in the dispute resolution practice of HSF Kramer. Both are based in London.
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