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Litigating Force Majeure, Impossibility, and Other Contractual Performance Issues: New Developments and Strategies

Recording of a 90-minute CLE video webinar with 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.

Conducted on Tuesday, May 2, 2023

Recorded event now available

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This CLE course will discuss how force majeure, impracticability and impossibility, and comparable "change of law" clauses have continued to be formidable defenses and points of leverage in breach of contract cases and also the bases of affirmative relief to recover prior payments. The program will also address best strategies for recovering from a third party that has caused a company to declare a force majeure with its existing customers. Finally, the panel plans to review recent decisions and how litigants have faired.


Perhaps no provision of contracts has been read or litigated with greater scrutiny during the pandemic than force majeure clauses and their related provisions and doctrines. During this time, a new body of case law has emerged that sharpens and expaneds these doctrines.

While these provisions may be defenses to claims for failure to perform, they also relieve parties of affirmative duties or authorize recovery of previously paid sums.

Over the past several years, everything from pathogens to political activism to climate events have transformed these previously ignored provisions into prominent risk-transfer tools. Counsel now have more decisions to make and a wider variety of structure and language to address in litigation.

Listen as our authoritative panel discusses what litigating force majeure defenses involves, the ramifications of settlement, the nuts and bolts of statutes of limitations, discovery issues, notice requirements, deadlines that have been or may be triggered, and damages. The panel will also review how well each argument has been received.



  1. Force majeure clauses and related doctrines
    1. Impracticability and impossibility
    2. Change of law clauses
    3. Types of cases in which they have been raised
    4. Industries in which the doctrines appear most frequently
    5. The relative success of arguments made
  2. Timeliness and waiver
  3. What facts must be shown
    1. Whether an objective or subjective standard applies to the definition of impossibility
    2. Whether the party invoking the defense contributed to the event
    3. In what fact patterns have force majeure proved most valuable
  4. Conflict of laws issues
  5. Settlement
  6. Recent cases


The panel will review these and other critical matters:

  • How force majeure clauses and related doctrines of impracticability and impossibility are similar and different
  • Notice requirements and deadlines
  • How and when such defenses are best raised
  • Burdens of proof
  • Likely fact issues
  • Choice of law issues
  • Best drafting practices for revising force majeure provisions


Nielsen, Matthew
Matthew G. Nielsen


Mr. Nielsen represents companies, boards, executives, and securities firms and professionals in internal and government...  |  Read More

Shargel, David
David A. Shargel


Mr. Shargel is a business litigator with extensive experience representing clients in complex commercial disputes and...  |  Read More

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