Introduction
English contract law, celebrated for its emphasis on certainty and party autonomy, does not possess a self-executing doctrine of force majeure. Instead, these clauses are creatures of contract, meticulously negotiated and drafted to allocate risk for supervening events that fall short of the high threshold required to frustrate a contract. For decades, such clauses were often relegated to the status of boilerplate, their provisions rarely tested. However, the recent ‘polycrisis’—a confluence of the COVID-19 pandemic, unprecedented global sanctions regimes, acute shipping disruption, and widespread supply-chain shocks—has thrust force majeure provisions from the periphery to the epicentre of commercial disputes. This has prompted a critical examination of their fitness for purpose in a volatile global landscape, leading to the question of whether they require a fundamental 'rethinking'.
This essay will argue that while these global disruptions have exposed the inadequacy of poorly drafted clauses and catalysed an evolution in commercial practice, a radical doctrinal 'rethinking' of force majeure by the courts is neither necessary nor desirable. The English judiciary’s consistent, restrictive approach to interpretation, while stringent, provides a bedrock of contractual certainty that is vital for commerce. The common law doctrine of frustration continues to operate as an effective longstop for truly paradigm-altering events. Therefore, the essential 'rethinking' required is not of the legal framework itself, but of the commercial diligence and foresight applied by contracting parties at the drafting stage. The current legal architecture is sufficiently robust and flexible to accommodate these modern challenges, placing the onus squarely on parties to negotiate and articulate their own bargains with greater precision.
The Traditional Architecture: Force Majeure and Frustration in English Contract Law
To evaluate the need for reform, one must first understand the existing legal landscape. A force majeure clause is a contractual mechanism designed to anticipate and make provision for the consequences of supervening events beyond the parties' control. Its effect is wholly dependent on its construction. This contrasts sharply with the common law doctrine of frustration, which operates automatically by law to terminate a contract in toto when a supervening event, occurring without the fault of either party, renders performance impossible or 'radically different' from that which was undertaken in the contract (Davis Contractors Ltd v Fareham UDC [1956]). Frustration is a 'sledgehammer' that brings the entire contractual edifice down; force majeure clauses, by contrast, offer a 'scalpel', allowing for a range of more nuanced outcomes such as suspension of obligations, extension of time, or an eventual right to terminate if the event persists.
The judicial approach to interpreting force majeure clauses is rooted in the principle of contractual certainty and the literalist tradition of English contract law. Courts construe these clauses restrictively, and any ambiguity is typically resolved against the party seeking to rely on the clause (contra proferentem), particularly in standard form contracts (Channel Island Ferries v Sealink UK [1988]). A party invoking a force majeure clause must typically demonstrate three elements: first, that the event falls within the express wording of the clause; second, that the event was the sole cause of the failure to perform; and third, that the party took all reasonable steps to avoid or mitigate the event and its consequences (McKendrick, 2022). The requirement that performance be prevented, rather than merely hindered or made more expensive, is a high bar, reflecting the foundational principle of pacta sunt servanda—agreements must be kept. This traditional framework, prioritising the contractual bargain over claims of hardship, forms the backdrop against which the recent global shocks have been judged.
Stress-Testing the Framework: The Challenge of Economic Sanctions
The imposition of complex, multi-jurisdictional sanctions, particularly those following Russia's 2022 invasion of Ukraine, has provided a formidable stress test for force majeure clauses. Sanctions often render performance difficult or commercially imprudent rather than strictly impossible, creating a grey area that tests the limits of contractual language. The pivotal case in this area is MUR Shipping BV v RTI Ltd [2024], which travelled to the Supreme Court and provides a masterful illustration of the English courts grappling with these modern commercial realities.
The dispute concerned a contract of affreightment requiring payment in US dollars. The shipowner, MUR, sought to invoke a force majeure clause after US sanctions were imposed on the charterer’s parent company. Although the sanctions did not make it illegal for the charterer, RTI, to pay in USD, they presented significant practical impediments for MUR in receiving and processing the funds without considerable delay and risk. The clause defined a force majeure event as one which "cannot be overcome by reasonable endeavours". RTI offered to pay in Euros and to indemnify MUR for any currency conversion costs, but MUR refused, declared force majeure, and commenced arbitration.
The initial arbitral tribunal found for RTI, concluding that MUR could have overcome the event by accepting payment in Euros as part of its duty to exercise "reasonable endeavours". The High Court overturned this, but the Court of Appeal ([2022] EWCA Civ 1406) robustly reinstated the position that reasonable endeavours did not compel a party to accept performance that was not in accordance with the contract. Males LJ, giving the lead judgment, reasoned that a party is not required "to accept non-contractual performance in order to circumvent the effect of a force majeure event". The object of the contract was payment in US dollars, and the "reasonable endeavours" provision related to overcoming the force majeure event itself, not to accepting a different performance to mitigate its consequences. This decision was widely seen as a reassertion of contractual certainty and the primacy of the express terms of the bargain.
However, the Supreme Court ([2024] UKSC 18) reversed the Court of Appeal's decision, restoring the original arbitral award. The majority judgment, delivered by Lord Hamblen and Lord Richards, focused on the specific wording of the clause. They held that the purpose of the "reasonable endeavours" provision was to overcome the disruptive state of affairs, and that if accepting payment in an alternative currency achieved the objective of the payment obligation—namely, the payee receiving the right quantity of money at the right time—then it could be considered a reasonable step. Crucially, this was conditional on the alternative performance causing no prejudice to the recipient. As RTI had offered to cover all conversion costs, MUR would have suffered no detriment. The Supreme Court distinguished between accepting a different outcome (e.g., less money) and accepting a different method of performance that achieves the same outcome.
The decision in MUR Shipping does not represent a revolutionary 'rethinking' but rather a sophisticated application of existing principles to novel facts. It shows that the framework is flexible enough to allow for commercially pragmatic solutions, but it does so through textual analysis of the specific clause—particularly the "reasonable endeavours" proviso—rather than by importing a broad, abstract duty of cooperation. The judgment reinforces the importance of precise drafting. Had the clause not included the "reasonable endeavours" wording, or had the contract specified that payment in USD was an essential condition, the outcome would almost certainly have been different. The case, therefore, highlights the adaptability of the current interpretive approach, not its obsolescence.
Navigating Disruption: Shipping Delays and Supply-Chain Shocks
Beyond sanctions, the physical disruption to global trade has been another source of contractual tension. The COVID-19 pandemic, with its associated lockdowns and labour shortages, and discrete events like the 2021 blockage of the Suez Canal, created widespread delays and cost escalations. Parties frequently sought to rely on force majeure clauses listing events like "acts of God," "governmental action," or "epidemic."
However, invoking these clauses proved challenging. A key hurdle, consistently upheld by the courts, is that an increase in the cost or difficulty of performance does not constitute force majeure. This principle, long-established in the doctrine of frustration (Tsakiroglou & Co Ltd v Noblee Thorl GmbH [1962]), is applied with equal rigour to the interpretation of force majeure clauses. For a party to be excused, performance must typically be legally or physically impossible, not just economically unviable. For example, if a supplier's primary source of raw materials becomes unavailable, the force majeure clause will not be triggered if those materials can be sourced elsewhere, even at a prohibitively high cost, unless the contract specifies a sole source of supply (Baatz, 2020).
Cases emerging from the pandemic confirmed this strict approach. In European Professional Club Rugby v RDA Television [2022], the court rejected a broadcaster's attempt to use a force majeure clause to avoid payments under a media rights agreement when a rugby tournament was postponed and modified due to COVID-19. The court found that the changes did not prevent the broadcaster from performing its core obligation, which was to make payments. This demonstrates that courts will dissect the contractual obligations and analyse causation with precision. The event must prevent the performance of the relevant obligation.
These cases do not signal a flaw in the legal doctrine. Rather, they expose the commercial misjudgement of parties who relied on generic, un-amended boilerplate clauses. The pandemic and shipping crises revealed that standard lists of force majeure events were often inadequate. They lacked specificity regarding pandemics and failed to address the more common commercial reality of extreme delay and cost inflation, as opposed to outright impossibility. This does not suggest the concept of force majeure needs rethinking, but that the practice of drafting it requires elevation from a "tick-box" exercise to a strategic allocation of foreseeable, if statistically unlikely, risks.
The Case Against a Doctrinal Rethinking: Certainty, Coherence, and Party Autonomy
The argument for a radical 'rethinking' of force majeure—perhaps towards a more flexible, 'good faith' standard as seen in some civil law jurisdictions—is ultimately unpersuasive for three core reasons.
First, the current restrictive approach champions contractual certainty, which is arguably the "most important achievement of English commercial law" (Goode, 2016, p. 11). Commercial parties, particularly in international trade and finance, value predictability above almost all else. A framework that allows clauses to be invoked based on hardship, economic imbalance, or vague notions of fairness would introduce profound uncertainty. It would encourage opportunistic litigation and make risk-pricing—a fundamental aspect of commerce—almost impossible. The existing approach ensures that when parties sign a contract, they can be confident that it will be enforced according to its terms, barring only the most extreme and narrowly defined circumstances. This rigour is a feature, not a bug.
Second, the English law system is not a monolith. Force majeure clauses operate in the shadow of the doctrine of frustration. Frustration provides a necessary, if rarely used, safety net where an event is so transformative that it destroys the common basis of the contract. This doctrine acts as a legal backstop, meaning there is no need to contort the interpretation of force majeure clauses to cater for catastrophic events. The two doctrines form a coherent, layered system: frustration deals with contract-ending impossibilities by default, while force majeure allows parties to negotiate their own, more granular and flexible solutions for a wider range of specified, but less extreme, disruptions (Peel, 2020). Diluting the strictness of force majeure would blur this functional distinction and destabilise the entire framework.
Third, and most fundamentally, the English law of contract is built upon the principle of party autonomy. The courts' role is to give effect to the bargain the parties have struck, not to rewrite it for them when it proves disadvantageous for one side. Force majeure clauses are a prime example of this principle in action. They are a tool for sophisticated commercial actors to allocate the risk of future uncertainties. If parties fail to draft clauses that adequately protect them from events like sanctions or supply-chain disruption, the failure is one of commercial foresight, not legal doctrine. To ask the courts to 'rethink' force majeure is to ask them to adopt a paternalistic role, shielding parties from the consequences of their own negotiations. This would be a significant departure from the core philosophy of English commercial law.
The Real Rethinking: A Call for Drafting Diligence
The true lesson from the recent global upheavals is not that the law is flawed, but that commercial practice must adapt. The 'rethinking' should occur not in the courtroom or lecture hall, but at the drafting table. The crises have created a powerful incentive for parties and their legal advisors to move beyond lazy boilerplate and engage in a more rigorous and imaginative approach to risk allocation.
This practical rethinking involves several key drafting considerations. Parties should now be considering:
- Specificity of Events: Moving beyond generic lists to explicitly name modern risks. Clauses are now more likely to include terms like "epidemic," "pandemic," "public health emergency," specific "sanctions" regimes, and disruption to specified "supply chains" or "transportation routes."
- Defining the Causal Link and Effect: The choice of verb is critical. Does the clause trigger when an event "prevents," "hinders," "impedes," or "delays" performance? The latter terms set a lower threshold than the traditional "prevents," but their inclusion must be a conscious commercial decision, as it broadens the scope for a party to be excused from its obligations.
- Elaborating on Mitigation: The "reasonable endeavours" proviso, so central to the MUR Shipping case, can be more clearly defined. Parties can specify what sorts of steps are (or are not) considered reasonable, such as sourcing alternative supplies (and up to what cost), accepting alternative modes of performance, or seeking licences to operate under sanctions regimes.
- Clear Consequences: The clause must clearly state the outcome of a force majeure event. Is performance merely suspended, and if so, for how long? Is there a longstop date after which either party can terminate? What happens to payments made or costs incurred?
The evolution is already underway, with legal practitioners and industry bodies developing more sophisticated 'polycrisis-proof' clauses (Herbert Smith Freehills, 2022). This demonstrates that the existing contractual framework is not a rigid cage but a flexible platform upon which parties can build bespoke solutions. The law provides the tools; it is up to the commercial world to use them wisely.
Conclusion
The series of global shocks since 2020 has undoubtedly subjected force majeure clauses to their most intense scrutiny in living memory. The litany of disputes concerning sanctions, shipping disruption, and supply-chain failures has forced a re-evaluation of their role and efficacy. However, this re-evaluation should not lead to a fundamental 'rethinking' of the underlying legal doctrine. The English judicial approach, which prioritises contractual certainty, party autonomy, and a restrictive interpretation of excusatory clauses, remains a cornerstone of a successful commercial legal system. This strictness provides a stable and predictable foundation, while the doctrine of frustration offers a crucial backstop for truly exceptional events.
The Supreme Court’s decision in MUR Shipping is not a radical departure but a nuanced application of existing principles of contractual interpretation, confirming that the framework can accommodate commercial pragmatism without sacrificing legal principle. Ultimately, the recent crises have served as a powerful, if painful, reminder that risk allocation is a primary function of commercial contracting. The challenge is not for the law to become more lenient, but for commercial parties to become more diligent. The 'rethinking' of force majeure clauses is, and should remain, a matter of improved drafting and commercial foresight, leveraging the flexibility of the current law rather than demanding its wholesale reform.
References
Baatz, Y. (2020) 'Force Majeure and Hardship in the Age of Corona', Journal of International Maritime Law, 26(3), pp. 165-170.
Channel Island Ferries Ltd v Sealink UK Ltd [1988] 1 Lloyd's Rep 323.
Davis Contractors Ltd v Fareham Urban District Council [1956] AC 696.
European Professional Club Rugby v RDA Television LLP [2022] EWHC 50 (Comm).
Goode, R. (2016) Commercial Law in the Next Millennium. Sweet & Maxwell.
Herbert Smith Freehills. (2022) Force majeure in English law contracts – "stress-testing" your clauses. Available at: [Accurate URL not available]
McKendrick, E. (2022) Contract Law: Text, Cases, and Materials. 10th edn. Oxford University Press.
MUR Shipping BV v RTI Ltd [2022] EWCA Civ 1406.
MUR Shipping BV v RTI Ltd [2024] UKSC 18.
Peel, E. (2020) Treitel on the Law of Contract. 15th edn. Sweet & Maxwell.
Tsakiroglou & Co Ltd v Noblee Thorl GmbH [1962] AC 93.
