What is Force Majeure?[1]

The term ‘force majeure’ comes from French law, where it translates as 'superior force' (as opposed to ‘vis majeure’ or ‘vis major’ which refers to an act of God). Whilst in France, the term has a defined legal meaning, in English law it does not, and it is dealt with in different ways by different forms of contract.
Very broadly, it relates to exceptional, unforeseen events or circumstances that are beyond the reasonable control of a party to a contract and which prevent or impede performance of their obligations under the contract. Generally it cannot be an event that the party could reasonably have avoided or overcome, or an event attributable to the other party.
Clauses referring to force majeure attempt to set out the circumstances to which the term applies to and prescribe how such situations should be treated. Depending on the provisions of the contract, the following may be considered to constitute force majeure:
  • Unforeseen changes to legislation.
  • Wars and other hostilities (such as terrorism).
  • Fires.
  • Exceptionally adverse weather.
  • Civil unrest, such as riots or revolution.
  • Strikes (other than by the contractor or subcontractors).
  • Natural catastrophes such as earthquakes, floods and volcanoes.
  • Epidemics or pandemics.

Force Majeure in FIDIC

FIDIC Red Book (1999)

According to FIDIC 1999 Red Book,Clause 19.1:  “Force Majeure” means an exceptional event or circumstance:

(a) which is beyond a Party’s control,  
(b) which such Party could not reasonably have provided against before entering into the Contract,
(c) which, having arisen, such Party could not reasonably have avoided or overcome,  and
(d) which is not substantially attributable to the other Party.

Force Majeure may include, but is not limited to, exceptional events or circumstances of the kind listed below, so long as conditions (a) to (d) above are satisfied:

(i) war, hostilities (whether war be declared or not), invasion, act of foreign enemies,
(ii) rebellion, terrorism, revolution, insurrection, military or usurped power, or civil war,
(iii) riot, commotion, disorder, strike or lockout by persons other than the Contractor’s Personnel and other employees of the Contractor and Sub contractors,
(iv) munitions of war, explosive materials, ionising radiation or contamination by radio-activity, except as may be attributable to the Contractor’s use of such munitions, explosives, radiation or radio-activity,  and
(v) natural catastrophes such as earthquake, hurricane, typhoon or volcanic activity. 

19.2 Notice of Force Majeure

If a Party is or will be prevented from performing any of its obligations under the Contract by Force Majeure, then it shall give notice to the other Party of the event or circumstances constituting the Force Majeure and shall specify the obligations, the performance of which is or will be prevented. The notice shall be given within 14 days after the Party became aware, or should have become aware, of the relevant event or circumstance constituting Force Majeure.

The Party shall, having given notice, be excused performance of such obligations for so long as such Force Majeure prevents it from performing them.
Notwithstanding any other provision of this Clause, Force Majeure shall not apply to obligations of either Party to make payments to the other Party under the Contract.

FIDIC Red Book (2017)

In the FIDIC Red Book (2017),It entirely drops the term "Force Majeure" and replaces it with "Exceptional Events." This makes the clause jurisdiction-neutral, ensuring that the contract's specific definition is exactly what governs the situation, regardless of local laws.

References

  1. https://www.designingbuildings.co.uk/wiki/Force_majeure_in_construction ↩