Force Majeure Clauses in Contracts: Drafting and Enforcing Provisions for U.S. and International Agreements

A live 90-minute CLE video webinar with interactive Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Tuesday, March 14, 2023

1:00pm-2:30pm EDT, 10:00am-11:30am PDT

Early Registration Discount Deadline, Friday, February 17, 2023

or call 1-800-926-7926

This CLE course will focus on drafting force majeure clauses to address the issues and factors required by U.S. courts for enforcement and address the international reach and interpretation of what "superior force" may mean on a global level. The panel will guide counsel on the precise nature of the language needed, what constitutes unforeseeable, the causation between an event and nonperformance, and evidence that effects are so severe that an obligation cannot be performed.

Description

As the global economy faces unforeseeable times with future catastrophes, many businesses risk potentially defaulting on contractual obligations. Companies are looking more closely at the force majeure clause, a boilerplate feature of most agreements, to mitigate some liability. Although not often negotiated or considered by counsel, force majeure provisions provide an affirmative defense to default. However, especially post-COVID, businesses must no longer ignore the potential applicability of force majeure to commercial agreements.

Amid the current economic uncertainty, businesses must determine whether circumstances presented by a potential catastrophe meet the legal requirements of force majeure and that such provisions are sufficiently specific to be enforceable. For a party to invoke the clause, the event must be unforeseeable. Boilerplate agreement language often includes a laundry list of events defining an "act of God," but a court may or may not agree that a specific catastrophe is a covered event. Further, enforcement of a force majeure clause requires that the company prove that the force majeure event defined in the contract caused a party's inability to perform a contract obligation.

Force majeure enforcement is also highly contingent on the country of implementation and often the impact of the catastrophe on a region's supply chain and workforce. China and the European Union use varying definitions for enforcement, and anticipating issues that may arise in a default informs counsel on how to draft the optimal provision to protect a business from future catastrophic losses.

Listen as our expert panel provides practical advice on drafting a precise and enforceable force majeure provision so counsel may save their clients from unforeseen circumstances upon the next global emergency.

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Outline

  1. Elements of force majeure
    1. Unforeseeable
    2. Causation
    3. Definitions of acts of God
    4. Severity of event
  2. Prior global force majeure events and court decisions
  3. Global enforcement
    1. China
    2. European Union

Benefits

The panel will review these and other key issues:

  • What are the necessary elements of force majeure provisions?
  • How might the definition of unforeseeable impact enforcement?
  • How is the nexus between the inability to perform and the force majeure event determined?
  • How does global enforcement of force majeure provisions vary in China and the European Union?

Faculty

Ellis, Nicholas
Nicholas J. Ellis

Partner
Foley & Lardner

Mr. Ellis’ practice focuses on manufacturing and supply chain disputes, UCC, warranty claims, contract law, and...  |  Read More

Additional faculty
to be announced.
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Early Discount (through 02/17/23)

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Early Discount (through 02/17/23)

You may pre-order a recording to listen at your convenience. Recordings are available 48 hours after the webinar. Strafford will process CLE credit for one person on each recording. All formats include course handouts.

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