Force majeure in international contracts is an external, unforeseeable circumstance that renders performance impossible and releases a party from liability. At Musch Legal, we handle force majeure claims daily since COVID-19, the Russia-Ukraine war, sanctions, and supply chain disruptions. The legal framework varies: Article 6:75 of the Dutch Civil Code, Article 79 of the CISG for international sales, and common law frustration. Clear force majeure clauses in the contract often determine the outcome.
What is the legal problem? (When can you invoke force majeure?)
A plea of force majeure requires: an external cause, unforeseeable at the time of contract conclusion, unavoidable, and not attributable to the debtor. Examples: natural disasters, war, sanctions, regulations, pandemic, critical supply failure. Non-force majeure: economic setbacks, price fluctuations, own organizational failure. For international contracts: different legal systems apply different thresholds. A force majeure clause in a contract specifies its application — often broader than default law.
What does the law say? (What frameworks apply to force majeure?)
Under Dutch law, Article 6:75 BW: failure to perform cannot be attributed to the debtor if it is not due to his fault and does not fall within his responsibility by virtue of law, legal act, or business practice. Consequences: no obligation to pay damages, but possibly repayment of the consideration. Under CISG Article 79: party not liable for failure if due to impediment beyond control, not foreseeable at the time of contract conclusion, not avoidable or insurmountable. Under common law frustration of contract (Davis Contractors v Fareham 1956): doctrine very limited.
For contractual force majeure: ICC Force Majeure Clause 2020 is often used; UNIDROIT Principles article 7.1.7.
Element
Dutch law
CISG
Common law
Basic
Art 6:75 BW
Art 79 CISG
Frustration doctrine
Threshold
Non-attributable
Beyond control
Radically different
Foreseeability
Required unforeseeable
Required
Required: unforeseeable
Mitigation
Required
Article 77 CISG
Limited
Consequences
No compensation
No compensation
Contract ends
Element
Dutch law
CISG
Common law
Basis
Art 6:75 BW
Art 79 CISG
Frustration doctrine
Threshold
Non-attributable
Beyond control
Radically different
Foreseeability
Requires non-foreseeable
Required
Requires non-foreseeable
Mitigation
Required
Article 77 CISG
Limited
Consequences
No compensation
No compensation
Contract ends
What risks do companies face? (What risks arise in the event of a failed force majeure appeal?)
In the event of a rejected force majeure appeal: liability for damages against the opposing party. In the event of a misinterpretation of a contractual force majeure clause: counterclaim for wrongful termination. For long-term contracts: termination can be costly if the force majeure was only temporary. For cross-border transactions: different legal systems yield different outcomes — forum shopping is crucial. For lack of notification of force majeure within the required timeframe (often 14-30 days): loss of the force majeure appeal.
Practical example from our practice (How do we save a force majeure claim?)
Musch Legal represented a Dutch machine builder with a 22 million euro contract for a Russian steel producer. Sanction extension in July 2022 made delivery impossible. The Russian client demanded delivery or an 8 million euro penalty. We invoked force majeure under Section 6:75 of the Dutch Civil Code (choice of law) plus a force majeure clause in the contract with an explicit sanctions clause. We documented: Extension of Regulation 833/2014 (external), unforeseeable at the time of contract conclusion in 2021, no alternative possible. NAI arbitration in The Hague: force majeure acknowledged, contract terminated without penalty. Client avoided an 8 million euro penalty and a violation of sanctions.
What can you do? (Which force majeure strategy are you building?)
In new contracts: build an explicit force majeure clause covering sanctions, pandemic, and supply failure. Define notification requirements (typically 14 days). Define consequences: suspension, extension, termination. For existing contracts in crisis: notify immediately upon a force majeure event. Document the impossibility of performance with external evidence (sanction publication, force majeure certificates from Chambers of Commerce). Investigate mitigation options. Engage Musch Legal for a force majeure strategy.
Sanctions and export restrictions in disputes