Proving force majeure claims: a difficult enterprise

by White & Case LLP

White & Case LLP

Two recent English High Court decisions highlight the difficulty in successfully establishing a claim to force majeure. Even if there is no dispute that a force majeure "event" occurred, has it caused the failure to perform? And has the party tried hard enough to avoid the consequences?


In English law, force majeure events are creatures of contract – they must be defined in the contract. This contrasts with the position in civil law jurisdictions which frequently include the concept of force majeure within their civil codes.

Sometimes it is beyond dispute that an event meets a contract’s definition of force majeure (noting that some contracts use different terms). Although the requirements depend on the terms of the contract, the party must usually also prove that:

  • the force majeure event caused that party’s failure to perform its contractual obligations; and
  • they have taken sufficient steps to minimise the issue caused by the force majeure event (they are often expressly required to take "reasonable steps" or use "reasonable endeavours").

Two recent English High Court decisions discussed below demonstrate some of the difficulties contracting parties may face in relying on force majeure to excuse liability for failing to perform a contractual obligation.


A party wishing to rely on a force majeure event to excuse itself from performance must first demonstrate that the force majeure event caused its failure to perform a contractual obligation. But the judicial treatment of causation can differ according to the circumstances. In two recent cases, Teare J has grappled with the question and come up with answers which some may find surprising.

The more straightforward case is Seadrill Ghana Operations Ltd v Tullow Ghana Ltd [2018] EWHC 1640 (Comm) (03 July 2018) ("Seadrill Ghana"). In this case, Tullow Ghana contracted with Seadrill Ghana to hire an oil rig for the drilling and extraction of oil in two offshore petroleum concessions off the coast of Ghana. After various circumstances prevented use of the rig, Tullow Ghana claimed force majeure and terminated the contract.

The judge found that although the Government of Ghana's moratorium on drilling, which was the claimed force majeure event by Tullow Ghana, did prevent the rig from drilling in certain areas, the effective cause of the failure to perform was the Government's failure to approve Tullow Ghana’s Greater Jubilee Plan (a drilling plan covering a wider area than that affected by the moratorium).

Therefore, the court held that Tullow Ghana was not entitled to rely upon the force majeure clause, and its purported termination of the contract on that basis was invalid. Tullow Ghana’s position may not have been assisted by referring internally to its discussions to consider options to terminate its contract, including by its force majeure claim, as "Project Voldemort" (the judge – evidently not a Harry Potter fan – was informed that he was "an evil and destructive character" in the bestselling novels). However, Teare J was at pains to emphasise that Tullow Ghana’s aims were not determinative of whether it was entitled to rely on the force majeure clause.

In reaching its decision, the court also relied on the decision in Intertradex v Lesieur [1978] 2 Lloyd’s Reports 509 which is said to be authority for the proposition that the force majeure event must be the "sole cause" of the failure to perform. However, this summary is not entirely accurate – in fact, the test which is set out therein is that the force majeure event must of itself have been sufficient to prevent performance (per Lord Denning at p. 515). In other words, it is not sufficient that a force majeure event combines with another event to render performance impossible if it was not sufficient to prevent performance on its own. In any event, the decision could have been made on the simpler ground that the Government’s failure to approve Tullow Ghana’s Greater Jubilee Plan had a far stronger causative effect.

"But for" test?

However, in Classic Maritime Inc. v Limbungan Makmur Sdn Bhd & Anor [2018] EWHC 2389 (Comm) (13 September 2018) ("Classic Maritime"), Teare J decided that a "but for" test was appropriate to determine whether the defendant, Limbungan Makmur ("Limbungan") could rely on the force majeure clause to avoid liability to Classic Maritime.

In this case, Classic Maritime, a ship owner, entered into a long-term affreightment contract with Limbungan, the charterer, for the carriage of iron ore pellets from Brazil to Malaysia. Following the burst of the Fundao dam in Brazil, Limbungan claimed the burst was a force majeure event that prevented it from supplying five cargo shipments of iron ore pellets from Brazil to Malaysia. A complicating factor in this claim was the fact that Limbungan was unlikely to have performed even in the absence of the dam burst. It had already missed two shipments due to a lack of demand in its factories in Asia. Teare J therefore held that the force majeure event had not caused Limbungan’s failure to perform and hence Limbungan could not rely on it to avoid liability.

Relying on previous authorities, Teare J took the approach that questions of causation are to be resolved by reference to common sense.He disregarded the line of authority commencing with Bremer Handelgesellschaft v Vanden Avenue [1978] 2 Lloyd's Reports 109 which suggested that if a force majeure event was proved to have prevented performance, the party relying on it did not have to show that it would have performed in the absence of that event. Teare J came to the conclusion that these cases applied only to frustration and not to force majeure.

However, it was a pyrrhic victory for Classic Maritime because Teare J also concluded that the compensatory principle in damages meant that they could not recover substantial damages from Limbungan. The rationale was that even if Limbungan would have been able to perform, the force majeure event would have prevented it so that it would be wrong to award compensation to Classic Maritime.

What steps are required to be taken by a party after a force majeure event?

"Reasonable endeavours" or "reasonable steps"

Often, force majeure clauses require the party relying on the force majeure event to demonstrate that it took "reasonable endeavours" to avoid, or, at least reduce the adverse effects of the force majeure event. Several of the FIDIC 1999 and 2017 suites of contracts, for example, require each party to use "all reasonable endeavours" to mitigate the effects of force majeure (and these words may yet impart a higher standard – see Rhodia International Holdings Limited & Another v Huntsman International LLC [2007] EWHC 292 (Comm)). Teare J also considered this issue in both cases.

In Seadrill Ghana, pursuant to the contract terms, both parties were required to use their reasonable endeavours to "mitigate, avoid, circumvent or overcome the circumstances of the force majeure occurrence". In considering "reasonable endeavours", Teare J took the view that this wording required Tullow Ghana to consider Seadrill's commercial interests under the contract as well as its own. It was held that Tullow Ghana could have provided Seadrill with drilling works elsewhere (that did not require approval from the Government of Ghana) and although these works were not as commercially attractive to Tullow Ghana, the requirement to consider Seadrill’s interests meant that a failure to provide them was a failure to use "reasonable endeavours".

In contrast with Seadrill Ghana, the contract in Classic Maritime did not contain express wording requiring any "reasonable endeavours" or otherwise to mitigate the effects of a force majeure event. In the absence of express words, the court found that the parties were nonetheless obliged to take "reasonable steps" to mitigate the effects of the force majeure event. In the event, it required Limbungan to demonstrate that it had taken reasonable steps to ship iron ore pellets from another location and supplier following the dam burst. Although Teare J considered that reasonable steps would have included seeking a long-term contract with an alternative supplier, on the facts he considered that no such long-term contract would have been available.


The focus in both judgments is on causation and, in particular, the rejection of the idea that "one size fits all" when it comes to considering whether a force majeure event has caused a failure to perform. Drawing upon principles of causation in other legal contexts, Teare J was concerned not to lay down a rigid test but rather find that causation depends on the circumstances in which it arises and should be decided on the basis of "common sense". This pragmatic approach allows judicial flexibility but potentially at the risk of increasing uncertainty.

These cases illustrate the practical difficulties in establishing relief for performance based on force majeure. In large, complex, multi-party projects, there are often likely to be competing causes for a failure to perform alleged by parties seeking compensation, or, on the other side, to absolve themselves of liability. For example, in large construction projects, it is not unusual that a force majeure event coincides with other delaying events such as failure to perform its contractual obligations or work scope changes. In such cases, courts or tribunals will carefully examine the reasons why parties fail to perform. The conduct of parties relying on a force majeure exclusion will also be scrutinised. There has been a lack of authority in relation to what is required as "reasonable endeavours" and Teare J’s approach of requiring a party to consider the commercial interests of the other side may well be influential in this context. An intriguing question is what the courts would require if the contract provided for "best endeavours" or "all reasonable endeavours" to overcome the force majeure event (as is sometimes the case).

Click here to download PDF.

Hirra Tung, an associate at White & Case, assisted in the development of this publication.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© White & Case LLP | Attorney Advertising

Written by:

White & Case LLP

White & Case LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at:

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit
  • New Relic - For more information on New Relic cookies, please visit
  • Google Analytics - For more information on Google Analytics cookies, visit To opt-out of being tracked by Google Analytics across all websites visit This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at:

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.