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How can you ensure a fair force majeure clause in Import/Export contracts?

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A force majeure clause is a provision in a contract that allows the parties to suspend or terminate their obligations in the event of unforeseeable circumstances beyond their control, such as natural disasters, wars, strikes, or epidemics. However, not all force majeure clauses are created equal, and some may be more favorable or restrictive than others. How can you ensure a fair force majeure clause in your import/export contracts? Here are some tips to consider.

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Maxim Cristian

Customs Specialist

1 Define the events

The first step is to define what constitutes a force majeure event in your contract. You can use a general definition, such as "any event or circumstance that is beyond the reasonable control of the affected party and that prevents or delays the performance of its obligations", or you can list specific examples, such as "fire, flood, earthquake, storm, hurricane, tornado, war, civil unrest, terrorism, pandemic, quarantine, embargo, etc.". The more specific you are, the less room for interpretation or dispute there will be.

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2 Specify the effects

The next step is to specify what effects the force majeure event will have on the contract. You can choose to suspend the performance of the obligations until the event is over, or to terminate the contract altogether if the event lasts longer than a certain period. You can also decide whether the affected party will be liable for any damages or penalties, or whether it will be excused from such liability. You should also consider whether the force majeure clause will apply to both parties equally, or whether one party will have more rights or obligations than the other.

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3 Include the procedures

The final step is to include the procedures that the parties must follow in case of a force majeure event. You should state how and when the affected party must notify the other party of the occurrence and the expected duration of the event, and how and when the parties must resume or terminate the contract once the event is over. You should also provide a mechanism for resolving any disputes or claims that may arise from the force majeure event, such as arbitration, mediation, or litigation.

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4 Review the clause

Before signing any import/export contract, you should always review the force majeure clause carefully and make sure that it reflects your interests and expectations. You should also compare it with the clauses in other contracts that you have with different suppliers or customers, and check for any inconsistencies or conflicts. If you are not sure about the meaning or implications of the clause, you should consult a legal expert or a trade specialist for advice.

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5 Negotiate the clause

Finally, you should remember that the force majeure clause is not set in stone, and that you can negotiate it with your counterpart before entering into the contract. You can propose changes or additions to the clause that suit your needs and preferences, and try to reach a mutual agreement that balances the risks and benefits for both parties. You can also use the clause as a bargaining tool to obtain better terms or conditions in other aspects of the contract.

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Maxim Cristian

Customs Specialist
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Before you claim force majeure, it may be worth discussing the situation informally with your counterparty to see if alternative arrangements can be negotiated to mitigate the issues caused by the force majeure event. This may keep relations more friendly and allow you to continue the contractual relationship after the event is over. Remember to keep any notification requirements in mind in case you do need to rely on the clause. There may also be an express or an implied obligation to mitigate the effect of the force majeure event. It’s important to keep records of details of the event and any steps taken to mitigate its effects in case you are required to evidence this.

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6 Update the clause

As the world changes and new challenges and opportunities emerge, you should also update your force majeure clause periodically to reflect the current realities and trends. You can do this by amending your existing contracts, or by creating new contracts with updated clauses. You should also monitor the legal and regulatory developments in the countries where you operate or trade, and adjust your clause accordingly to comply with the applicable laws and standards.

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7 Here’s what else to consider

This is a space to share examples, stories, or insights that don’t fit into any of the previous sections. What else would you like to add?

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How can you ensure a fair force majeure clause in Import/Export contracts?

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1 Define the events

2 Specify the effects

3 Include the procedures

4 Review the clause

5 Negotiate the clause

6 Update the clause

7 Here’s what else to consider

Import/Export Operations

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How can you ensure a fair force majeure clause in Import/Export contracts?

1

2

3

4

5

6

7

1 Define the events

2 Specify the effects

3 Include the procedures

4 Review the clause

5 Negotiate the clause

6 Update the clause

7 Here’s what else to consider

Import/Export Operations

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