Force Majeure Clauses Post-Brexit Interpretation
1. Post-Brexit Legal Context
A. Retained EU Law and Contractual Interpretation
After Brexit:
EU law is retained but no longer supreme
UK courts may depart from CJEU jurisprudence
Contractual interpretation remains grounded in English common law principles
Key Principle:
Force majeure remains purely contractual, unaffected in structure but influenced in context and application.
2. Core Issues in Post-Brexit Interpretation
A. Does Brexit Qualify as a Force Majeure Event?
1. Express Inclusion
If clauses include:
“Government action”
“Change in law”
“Trade restrictions”
→ Brexit-related consequences may qualify.
2. General Wording
Generic terms like:
“Events beyond reasonable control”
→ Courts interpret narrowly.
Case Law:
Channel Island Ferries Ltd v Sealink UK Ltd [1988] 1 Lloyd’s Rep 323
Emphasizes strict interpretation of clause wording.
B. Foreseeability and Timing
A critical issue post-Brexit is:
Whether Brexit was foreseeable at contract formation
Legal Impact:
If foreseeable → harder to rely on force majeure
If unforeseeable → stronger claim
Case Law:
Edwinton Commercial Corporation v Tsavliris Russ (The Sea Angel) [2007] EWCA Civ 547
Foreseeability and allocation of risk are central to supervening events.
C. Causation Standards
Brexit must cause the non-performance, not merely make it more difficult.
Case Law:
Classic Maritime Inc v Limbungan Makmur Sdn Bhd [2019] EWCA Civ 1102
Introduced strict “but for” causation—party must prove performance would have occurred absent the event.
D. Economic Hardship vs Legal Impossibility
Brexit often results in:
Increased tariffs
Customs delays
Regulatory burdens
However, economic difficulty alone is insufficient.
Case Law:
Tsakiroglou & Co Ltd v Noblee Thorl GmbH [1962] AC 93
Performance still required if alternative methods exist.
E. Self-Induced Non-Performance
Companies cannot rely on Brexit if:
They failed to prepare for known risks
They did not take alternative steps
Case Law:
The Super Servant Two [1990] 1 Lloyd’s Rep 1
Failure to use available alternatives defeats force majeure claims.
F. Mitigation and Reasonable Endeavours
Post-Brexit, parties must show:
Efforts to adapt supply chains
Alternative sourcing
Compliance with new regulations
Case Law:
Bulman & Dickson v Fenwick & Co [1894] 1 QB 179
Obligation to mitigate impact of disruptive events.
3. Brexit-Specific Scenarios
A. Border Delays and Customs Barriers
Usually not sufficient unless they render performance impossible
May qualify if clause includes “government restrictions”
B. Regulatory Divergence
Changes in standards or certifications
May trigger “change in law” provisions
C. Currency Fluctuations
Generally not force majeure
Considered commercial risk
D. Supply Chain Disruption
Supplier failure alone insufficient unless expressly covered
Case Law:
Seadrill Ghana Operations Ltd v Tullow Ghana Ltd [2018] EWHC 1640 (Comm)
Event must be the effective cause of non-performance.
4. Interaction with Frustration Doctrine
If force majeure clause does not apply:
Parties may argue frustration
However:
Threshold is high
Contract automatically terminates
Case Law:
Davis Contractors Ltd v Fareham UDC [1956] AC 696
Mere hardship or delay is insufficient.
5. Drafting Implications Post-Brexit
A. Express Brexit Clauses
Modern contracts include:
“Brexit” as a defined event
“Change in law or trade regime” provisions
B. Risk Allocation
Corporations must clearly allocate:
Tariff risks
Customs delays
Regulatory compliance costs
C. Hybrid Clauses
Combine force majeure with material adverse change (MAC) clauses
6. Key Case Law Summary
Classic Maritime v Limbungan (2019) – “But for” causation
Seadrill v Tullow (2018) – Effective cause test
Channel Island Ferries v Sealink (1988) – Strict interpretation
The Sea Angel (2007) – Foreseeability and risk allocation
The Super Servant Two (1990) – Self-induced impossibility
Tsakiroglou v Noblee Thorl (1962) – Economic hardship insufficient
Bulman v Fenwick (1894) – Mitigation duty
Davis Contractors v Fareham (1956) – Frustration doctrine
7. Practical Corporate Guidance
To manage post-Brexit risks:
Draft specific force majeure clauses covering:
Trade barriers
Regulatory changes
Border delays
Include detailed notice and mitigation provisions
Use alternative sourcing strategies
Maintain documented evidence of causation and mitigation
8. Conclusion
Post-Brexit interpretation of force majeure clauses reflects continuity in legal principles but change in commercial context. Courts emphasize:
Strict contractual interpretation
Clear causation between Brexit event and non-performance
Allocation of foreseeable risks
Ultimately, Brexit has made force majeure clauses more commercially significant but legally demanding, requiring precise drafting and strong evidentiary support for successful reliance.
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