Force Majeure

Force majeure (French for "superior force") is a doctrine in both private contract law and public international law that releases a party from liability when performance is prevented by an event beyond its reasonable control. The classic triggers are natural disasters, war, blockade, or other irresistible circumstances that the party did not cause and could not have foreseen or avoided.

In international law, the doctrine is codified in Article 23 of the International Law Commission's 2001 Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA). Under that provision, the wrongfulness of a state's act is precluded if the act is due to "the occurrence of an irresistible force or of an unforeseen event, beyond the control of the State, making it materially impossible in the circumstances to perform the obligation." The defence fails where the state has contributed to the situation or has assumed the risk of its occurrence.

Force majeure is narrower than related concepts often confused with it:

• Distress (ARSIWA Art. 24) concerns saving lives, not impossibility.
• Necessity (ARSIWA Art. 25) protects essential interests against grave peril.
• Rebus sic stantibus (Vienna Convention on the Law of Treaties, Art. 62) allows termination of a treaty for fundamental change of circumstances, not temporary excuse.

International tribunals apply force majeure restrictively. In the Serbian Loans case (Permanent Court of International Justice, 1929), the PCIJ rejected France's argument that World War I constituted force majeure excusing gold-clause payments. The Rainbow Warrior arbitration (France/New Zealand, 1990) similarly held that force majeure requires "absolute and material impossibility," not mere difficulty or political inconvenience.

In commercial practice, force majeure clauses are standard in contracts and typically enumerate qualifying events (acts of God, war, pandemic, government action). The COVID-19 pandemic prompted widespread invocation of such clauses from 2020 onward, with courts generally requiring clear causation between the event and non-performance.