A comprehensive force majeure clause (i.e. one that describes force majeure events, specifies notification/communication procedures between the parties, and applicable legal consequences) should normally be enforceable in practice. We note that, under Russian law, force majeure events are not limited to those listed in the clause unless the clause provides otherwise.
Please see below for an example force majeure clause (please note that the actual wording of the clause should be adjusted according to the particular circumstances of each contract).
“The parties’ ability to perform their obligations hereunder may be affected by force majeure circumstances.
Force majeure circumstances may include, without limitation, earthquakes, volcanic eruptions, tsunamis, floods, natural disasters, other disasters, epidemics, public health emergencies, fire, war risks (wars, military actions or military operations, whether a state of war has been declared or not, military invasions, civil wars, civil unrests, coups, unlawful seizure of civil/military power, conspiracy, uprisings, terrorism, any explosions or impact of mines, bombs, shells, grenades, ammunition, missiles, or other results of explosions, which occur at/near the location of any of the parties and/or the parties’ contractors), strikes and lockouts, terrorist attacks, enforcement of new laws and actions of state and municipal authorities (decrees, directives, restrictions), and any other circumstances that are extraordinary and unavoidable under regular conditions (hereinafter, each referred to as a “Force Majeure Event”, and collectively as the “Force Majeure Events”).
Notwithstanding any provisions hereof stating the contrary, the parties have agreed that the party that fails to perform or improperly performs its obligations hereunder shall not be liable if it proves that proper performance was impossible as a result of a Force Majeure Event, provided that:
- a party that is unable to perform its obligations due to a Force Majeure Event shall within [●] business days after the onset of such Force Majeure Event notify the other party thereof in writing and provide information about the nature and extent of a Force Majeure Event (hereinafter - the “Force Majeure Notice”);
- the Force Majeure Notice is to be forwarded in accordance with the notification procedure set forth in clause [●] hereof;
- the reporting party shall also supply documentary evidence of the Force Majeure Event in the form of a certificate issued by [●] or another competent authority not later than [●] business days after the onset of a relevant Force Majeure Event,
hereinafter – the “Notification Requirements”.
If the above Notification Requirements have been duly fulfilled, the deadline for the fulfilment of the obligations by the relevant party shall be extended for the period of the respective Force Majeure Event, as referred to in the Force Majeure Notice, as well as the time reasonably required to resume the performance hereof.
Should the Notification Requirements fail to be complied with or should the relevant Force Majeure Notice be delayed beyond the time limits specified above, the affected party shall no longer be entitled to refer to a corresponding Force Majeure Event as a ground for relieving it from its liability for breaching its obligations hereunder.
If a Force Majeure Event that affects any party’s ability to duly perform its obligations hereunder persists for more than [●] consecutive weeks, either party shall be entitled to unilaterally terminate this agreement at its sole discretion and without application to court, provided that it has delivered the termination notice to the other party in accordance with clause [●] hereof. Should such termination take place, the following consequences shall apply: [●].”
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