In international commercial contracts, certain clauses appear almost universally. One of the most common is Force Majeure, a provision designed to protect parties from obligations they cannot fulfill due to extraordinary and unforeseeable events.
But in today’s world, what exactly qualifies as “force majeure”? A third-party service outage? A cyberattack? A sudden regulatory change?If your clause hasn’t been updated the answer may well be: no.
Why It Matters Now
Global disruptions like COVID-19, regional conflicts, growing data regulation (GDPR, Israel’s Amendment 13), and cyber threats have introduced new risks for businesses. Yet many contracts still rely on outdated versions of the clause referencing only “epidemics, natural disasters, wars, or strikes.”
The result? When things go wrong, there’s often no contractual protection.
Force Majeure 2.0: What Should Be Covered Today?
Here are examples of events that companies are increasingly seeking to include:
- Cyberattacks (not just on the organization but also on key third parties)
- Cloud service outages (e.g. AWS, Azure, Google Cloud)
- New regulatory restrictions (e.g. limitations on cross-border data transfers)
- Critical API shutdowns or access disruptions
- Network or infrastructure failures impacting system availability
The logic is simple: if your business depends on tech your contract should reflect that.
How to Draft a Modern Force Majeure Clause
A few guiding principles:
- Clearly define what qualifies as force majeure don’t rely on vague language.
- Include current and relevant examples such as cyber events or cloud failures.
- Set clear notification deadlines to avoid retroactive claims of non-performance.
- Define what happens if the disruption persists e.g., a right to terminate after 60 days of material interruption.
Why It’s Critical in Cross-Border Contracts
In arbitration or litigation abroad, only what is explicitly written in the contract carries weight.
Different jurisdictions interpret Force Majeure differently.
A well-drafted, updated clause can prevent costly disputes — and provide legal certainty even in moments of crisis.