England & Wales: Force Majeure

This country-specific Q&A provides an overview of Force Majeure laws and regulations applicable in England and Wales.

  1. May force majeure be relied on by a party to a contract, even if the parties have not included a force majeure clause?

  2. If so, please explain in which circumstances force majeure may be relied on.

  3. Is the concept of force majeure enshrined in legislation?

  4. If so, may the parties agree to derogate from the provisions of this legislation?

  5. What is the approach taken to drafting force majeure clauses in your jurisdiction?

  6. Is it common practice to include force majeure clauses in commercial contracts?

  7. Would the courts be willing to imply force majeure terms into contracts?

  8. How do courts approach the exercise of interpretation in relation to force majeure clauses?

  9. Are there any legislative or statutory controls on the use of force majeure clauses?

  10. Must an event have been unforeseeable at the time of the contract to permit a party to rely on it as force majeure?

  11. What types of events are generally recognized by courts of your jurisdiction as being force majeure?

  12. What types of events have been dismissed by courts of your jurisdiction as not being force majeure?

  13. Have courts recognized the COVID-19 pandemic as force majeure in your jurisdiction?

  14. Would a governmental decision or announcement that an event is a force majeure influence courts of your jurisdiction (e.g. force majeure certificates provided by the Chinese Government to Chinese companies during the covid19 pandemic)?

  15. Does force majeure allow a party to suspend its obligations? If yes, for how long?

  16. Does force majeure allow a party to totally or partially avoid liability for failure or delay in performing its obligations?

  17. Does force majeure give a party the potential right to terminate the contract?

  18. On whom would the burden of proof lie when attempting to rely on force majeure?

  19. What would a party seeking to rely on force majeure be required to show?

  20. To what extent is a party required to mitigate its position/losses before seeking to rely on force majeure?

  21. Are there any applicable notice requirements which an affected party would be required to comply with before invoking force majeure?

  22. What is the consequence of failing to comply with such notice requirements?

  23. What would be the impact of force majeure on any prepayments made under contractual arrangements?

  24. What contractual remedies are available to affected parties, other than force majeure?

  25. What effect does force majeure have on consumer contracts? When can a producer or retailer effectively rely on this concept?

  26. What type of insurance policy could cover force majeure events in your jurisdiction?

  27. Are there any plans for reform in your jurisdiction, in terms of enacting new legislation or amending existing legislation (both for the short-term and long-term), to assist parties with force majeure, given the recent COVID-19 pandemic?