Force majeure clause analysis—a practical guide

The following Dispute Resolution practice note provides comprehensive and up to date legal information covering:

  • Force majeure clause analysis—a practical guide
  • Stage 1—is there a force majeure clause?
  • Stage 2—has there been a force majeure event?
  • Stage 3—identifying the effected obligation
  • Stage 4—how has the force majeure event impacted performance?
  • Stage 5—causation and force majeure
  • Stage 6—alternative performance
  • Stage 7—potential pitfalls
  • Stage 8—next steps

Force majeure clause analysis—a practical guide

This Practice Note provides a step-by-step process for analysing and invoking a force majeure clause. It must be read in conjunction with Practice Note: Force majeure—consequences and contract discharge.

Stage 1—is there a force majeure clause?

There is no legal concept in English law of ‘force majeure’ (contrast this with countries which apply a civil code specifically recognising force majeure, eg, France). Therefore if your client wishes to avoid or limit their liability because of an inability to perform caused by an event such as, eg, coronavirus (COVID-19), then you will need to check that the relevant agreement contains a force majeure clause.

As with any contractual clause, how the force majeure clause is to be interpreted is a matter of established principles of contract interpretation (see Practice Notes: Contract interpretation—the guiding principles and Contract interpretation—rules of contract interpretation) and as discussed further.

In reviewing the agreement, ensure that you conduct a thorough review of the whole agreement and that you understand how different clauses operate and inter-act with one another. See, eg Practice Note: How to approach a contractual interpretation dispute—a practical guide. This is especially relevant to all performance (obligation) clauses and any which impose, limit or seek to exclude liability or otherwise allocate risk between the parties to the agreement.

Note that force majeure clauses are generally interpreted restrictively with, eg

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