You've received a force majeure notice. What now? - A practical guide for businesses on the receiving end of force majeure claims

Global disruption seems to be the new normal state of the world. Even regional events can trigger cascading effects across interconnected economies. From the Covid-19 pandemic to the Russia-Ukraine conflict and the Middle East crisis, businesses face rolling shocks that ripple across borders and supply chains. The consequences cut across industries: volatile energy prices, supply-chain breakdowns, project delays, and margin-squeezing cost escalation.

Against this backdrop, contractual disputes proliferate, testing contractual mechanisms and dispute resolution provisions. The unpredictable geopolitical landscape has focused attention on force majeure clauses. Force majeure notices now land with increasing frequency, and sometimes in volume. This creates time pressure and makes it hard to effectively manage responses.

If you receive one (or more) force majeure notices, you need a structured management and response process. Missteps may carry severe, potentially irreversible, consequences. This quick guide sets out what to do and what to watch out for.

It is not only geopolitical disruption that is testing commercial parties' agreements. The impact of increasingly extreme weather represents another uncertainty driving disputes. For discussion of the contractual implications of disruptive weather, see our article: Extreme weather: beyond the force majeure clause - How changing weather conditions will drive commercial disputes, and what you can do to prepare.

Force majeure: a primer

Many civil law systems recognise a doctrine of "hardship" or "material adverse change" grounded in good faith principles. This allows contracts to be renegotiated, adjusted or, in certain circumstances, terminated to address unforeseen circumstances that fundamentally alter the parties' bargain.

These systems also typically recognise force majeure as a freestanding principle. Although the precise requirements vary between jurisdictions, force majeure in civil law jurisdictions generally requires an event beyond the affected party’s control that could not reasonably have been foreseen or avoided, and that prevents that party from performing its contractual obligations. Depending on the applicable law and whether the impediment is temporary or permanent, force majeure may excuse or suspend performance of the affected obligations or, in certain circumstances, result in termination of the contract¹.

Common law systems generally recognise no such principles. Parties will be held to, and must generally perform, their freely undertaken obligations, unless their contract contains a force majeure clause and they satisfy its conditions.

If a party successfully claims force majeure, its performance obligations may be suspended while the event continues. Prolonged or permanent force majeure may also result in termination under the terms of a contract's force majeure clause.

Courts and arbitral tribunals enforce force majeure clauses but construe them strictly, given the significant consequences of successfully invoking force majeure. Both the claiming party and the notice recipient must adhere carefully to the contract's terms. Wrongful reliance or unjustified refusal to perform may amount to repudiatory breach.

Notice recipients face their own pitfalls. Accepting an invalid notice could amount to an unintended waiver of your contractual rights. Rejecting a valid notice and terminating could expose you to significant damages claims.

So, what to do when you receive a force majeure notice?

More haste, less speed: acknowledge but do not commit

A force majeure notice creates immediate time pressure, particularly if it affects your obligations to other parties in a contractual chain. Resist the urge to fire off a fast, substantive reply so you can move on to the next issue.

Instead, put in place a structured response process:

• Record. Ensure you record when, how and in what form you received the notice.
• Acknowledge. Issue a prompt holding response, which acknowledges receipt of the notice in neutral terms. Reserve all your rights.
• Investigate. Check the notice against the contract and/or the applicable law, and test its substance.
• Get advice early. Errors at this stage may lock you into a position that you cannot later reverse, with potentially significant consequences.

When acknowledging a force majeure notice, avoid language that could be read as accepting the claim, waiving rights, or otherwise prejudicing your position (for example, creating an estoppel). Avoid at this stage admitting that the notice is "in accordance with" the contract's force majeure clause or the applicable law. Keep your holding response factual and neutral. Indicate that you are reviewing your counterparty's claim and will respond substantively in due course.

Scrutinise the notice

The first step is to identify the basis on which force majeure is invoked, whether under the contract, the applicable law, or both. This will allow you to assess the notice against the requirements that apply to the claim.

For instance, non-compliance with contractual notice provisions can defeat a force majeure claim entirely. For this reason, whether a force majeure clause imposes a notification requirement (and/or reporting obligation) as a pre-condition to invoking force majeure is often a vigorously contested issue. It will turn on the proper interpretation of the precise language used by the parties.

The recent English decision of ADM Industries Centers Ltd v Inerco Trade SA [2026] EWHC 1873 (Comm) illustrates the point. The contract provided that performance would be suspended for force majeure events "provided that Sellers shall have served a notice on Buyers within 7 consecutive days of the occurrence". An arbitral tribunal ruled that compliance with this period was not a condition precedent, provided the buyer was not prejudiced by any delay. The English Commercial Court disagreed, holding that the wording was unmistakably the language of a condition precedent and served a desirable commercial purpose. If the sellers had not complied with the notice period (a question remitted to the tribunal), it followed that they had not properly invoked force majeure and their claim should fail.

On receiving a force majeure notice, check:

• Form and delivery. Does the notice satisfy the force majeure clause's procedural requirements? Check that it has gone to the correct addressee, in the prescribed form, by a proper delivery method. Notice requirements may appear elsewhere in the contract, not only in the force majeure clause itself.
• Time limits. Was the notice served within the required period? Is timely service expressed as a condition precedent?
• Content. Does the notice identify a specific force majeure event within the contractual definition? Does it explain the causal link between the claimed event and your counterparty's inability to perform? Does it detail what steps they have taken to mitigate the impact?

Remember that common law courts and arbitral tribunals construe force majeure clauses strictly according to the words used. If the clause refers merely to "war," then a "conflict" may not qualify. However, if, as is common, the clause references "war, declared or undeclared", then the position may be clearer. Similarly, where the clause requires performance to be "prevented" by the force majeure event, the fact that performance is merely "hindered" or costs have increased is unlikely to suffice.

Another area of uncertainty arises from the phrase "acts of God", which commonly appears alongside a list of specified natural events, such as "flood, drought, earthquake or other natural disaster". This creates several uncertainties. First, it may be unclear whether the specific instances are intended to be examples of a broader category of "acts of God", or whether "acts of God" are some different class of event, separate from those expressly listed. Second, the phrase "acts of God" may also add additional scope for dispute where the clause specifies that force majeure relief will be disapplied for events that should have been foreseen by the affected party: to what degree can an act of God ever be said to have been (reasonably) foreseeable?

Investigate and test the substance of the claim

Move beyond the paperwork and interrogate the claim on its merits:

• The trigger event. Does the event cited in the notice fall squarely within the force majeure definition under the contract and/or the applicable law? If the claim is contractual, consider whether your clause sets out an exhaustive list of events that the parties have agreed constitute force majeure or, as many do, includes "sweep-up" language (for example, "any other cause or event beyond the Seller's reasonable control"). If your clause is exhaustive, then the trigger event will need to match the description of one of the specific items in the list. If force majeure is invoked under the applicable law, consider whether the event satisfies the relevant legal requirements.
• Impact on performance. Consider the required impact of the event on performance to constitute force majeure. Under a contractual claim, does the clause require the event to "prevent" performance, or is it sufficient that performance is "hindered", "delayed" or "affected"? Where force majeure is invoked as a matter of law, consider the threshold imposed by the applicable law. Increased cost may not be sufficient.
• Causation. The counterparty must demonstrate a clear causal link between the force majeure event and its specific inability to perform. A general connection is insufficient. Under English law, case law suggests the force majeure event may need to be the sole cause of non-performance. For example, in Seadrill Ghana Operations Ltd v Tullow Ghana Ltd [2018] EWHC 1640 (Comm), an oil drilling company could not rely on force majeure in an oil rig hire agreement. A government moratorium on drilling had caused the lack of drilling, but so had the government's refusal to approve a new oil field on other grounds. The moratorium was a force majeure event; the refusal was not.
• Mitigation. Consider both the steps your counterparty has taken and what other reasonable steps it should have taken following the claimed trigger event. Could it source alternative supply, use different shipping routes, or adopt other methods? The contract and/or applicable law may require the claiming party to show that it took reasonable steps to avoid or mitigate the effects of the event. Even where a force majeure clause is silent on this, it may be implied: if reasonable steps could have avoided non-performance, it is the failure to take those steps that prevents performance. The UK Supreme Court's decision in RTI Ltd v MUR Shipping BV [2024] UKSC 18 confirms an important limit under English law: reasonable endeavours clauses do not oblige a party to accept non-contractual performance, absent clear wording to that effect. Where sanctions rendered the contractually required US dollar payments impossible, the question was what reasonable steps could facilitate a US dollar payment, not whether payment in another currency was possible.
• Independent verification. Cross-check your counterparty's factual claims against market reports, shipping data, sanctions lists and other available information. If you have multiple contracts for similar obligations with different counterparties, the absence of other force majeure notices may be telling. If you receive notices from different counterparties in similar positions, compare them (bearing in mind that force majeure clauses in different contracts are unlikely to be identical).

Put your counterparty to proof

Request detailed information from your counterparty to support their force majeure claim and its impact on performance. Request a timeline setting out when the event occurred, when performance was affected, what steps were taken and when, and the event's anticipated duration. Ask for evidence of mitigation efforts. This helps you decide whether to accept or reject the claim. Requiring your counterparty to set out a detailed written account may prove valuable should a dispute arise down the line.

Weigh the risks before giving a substantive response

The consequences of getting your response wrong run in every direction.

Take legal advice before committing to a position. Consider whether meeting your counterparty to discuss an amendment to the contract, reflecting the new commercial reality, offers a better option than confrontation.

Map the wider contract chain and understand the implications

A counterparty's upstream force majeure claim may cascade into your downstream obligations. However, force majeure clauses rarely match across related contracts. They may define force majeure events differently or impose different notice, foreseeability or mitigation requirements. There is, therefore, a (potentially complex) exercise to assess whether a force majeure event relied on by your counterparty under one contract, will allow you to trigger the force majeure provisions in another agreement.

Steps to take:

• Build a contract matrix identifying force majeure clauses, triggers, notice requirements, and termination thresholds across the chain.
• Understand the differences between force majeure clauses in back-to-back contracts, so that you can consider whether it is appropriate (even necessary) to issue protective notices and reservations of rights while you determine the position under different agreements.
• Assess alternative options for continued performance, such as alternative supply.
• Consider whether other remedies may offer additional relief. These could include price review mechanisms or civil law hardship doctrines at the place of performance.
• Map dispute resolution mechanisms early, including tiered processes involving negotiation, mediation, expert determination, dispute adjudication boards or/and arbitration, so you understand which processes apply and what steps may need to be taken if the force majeure claim develops into a dispute.

Energy, infrastructure and natural resources: specific issues

Energy, infrastructure and natural resources contracts face particular exposure. Against a backdrop of volatile energy prices and supply-chain dependencies, force majeure claims often involve high-value, long-term commitments with complex termination provisions. Government action, sanctions, export restrictions and disruption to critical supply or transportation routes may also give rise to force majeure issues, depending on the contractual terms.

Some oil and gas infrastructure contracts permit termination where prolonged force majeure prevents works for extended, aggregate periods. However, this carries significant financial consequences, including potential obligations to pay for completed but unsettled work.

Various issues may require input from experts, including, for example, challenging whether a claimed force majeure event is causative of a counterparty's inability to perform. Consider early whether such input may be required and, if necessary, engage a suitable expert early on. Particularly in specialised energy markets, such as the gas market, the pool of potential experts may be small, with conflicts of interest further impacting availability.

An oil or gas company that sees its ability to deliver reduced, but not wiped out, by a force majeure event, may be obliged to share whatever volumes it has available among its various buyers. This would typically be in proportion to the buyers' contractual entitlements. Without this obligation, a seller might elect to fully perform under its most valuable contract(s), while declaring force majeure under others. However, contracts often create complex arrangements covering such scenarios, whose interpretation may well be disputed.

Key takeaways

• Acknowledge fast, commit slow. Issue a prompt holding response reserving all rights but do not concede anything.
• Scrutinise the notice. Identify whether force majeure is invoked under the contract, the applicable law or both, and check compliance with every substantial and procedural requirement (including content, form and timing).
• Investigate and put your counterparty to proof. Test the substance of the notice against the contract and/or the applicable law, and against reality. Demand evidence, timelines and details of mitigation efforts.
• Assess your risks. Understand the consequences of accepting, rejecting or ignoring the claim before you take a position.
• Map the chain. Identify how the force majeure claim affects your obligations under related contracts, which are unlikely to contain matching force majeure provisions, and consider whether it is necessary to issue protective notices.
• Get advice early. The stakes are high and mistakes are difficult to undo.

Authors: Philip Chong, Partner; Sylvia Tee, Partner; Cameron Cuffe, Partner; Tammam Kaissi, Partner; and Alex Hiendl, Senior Expertise Lawyer.