Force Majeure After 2020: What Changed in Commercial Drafting

Force majeure was, for decades, boilerplate that nobody read closely. That is no longer true, and the drafting that has emerged since 2020 is materially tighter.

Enumerated events, and the interpretive risk

Clauses now routinely list epidemics, pandemics, government action, quarantine and public health measures expressly. This resolves the debate about whether a general sweep-up covers a pandemic, but creates its own problem: a long specific list followed by a general catch-all may be read ejusdem generis, narrowing the catch-all to events of the same kind. If the catch-all is meant to be broad, say expressly that it is not limited by the preceding enumeration.

Prevention, hindrance and delay

The trigger threshold does more work than the event list. “Prevented” is a high bar approaching impossibility. “Hindered” or “delayed” is considerably lower and materially changes who bears the risk of a disruption that makes performance expensive rather than impossible. Choose deliberately; the difference is worth more than the list of events.

Notice mechanics that are actually workable

Short notice periods running from when the affected party “becomes aware” produce disputes about awareness. Better: notice within a defined number of business days of the event materially affecting performance, in writing to a named contact, with a description of the effect and an estimate of duration, and an obligation to update at defined intervals.

Mitigation and the duty to keep trying

Modern clauses impose an express obligation to use reasonable endeavours to mitigate and to resume performance, and to demonstrate what was done. Without it, a party can shelter behind the event for longer than the disruption justifies.

Consequences beyond suspension

Suspension without an endpoint leaves both parties in limbo. Contracts increasingly include a termination right once the event has continued for a defined period — typically 30 to 90 days — with a stated position on payments already made, work in progress and the return of materials. Deciding this at drafting is far cheaper than deciding it during the event.