OPINION: Force Majeure is a verb, not a declaration

MOST people treat force majeure like a light switch. Something goes wrong, a port closes, a strait gets dangerous, a supplier collapses and someone sends a notice invoking the clause, as if the words themselves do the work. Notice sent, box ticked, obligations suspended. That's not how it functions and treating it that way is one of the most common and most expensive mistakes I see in a crisis.

Managing a force majeure event isn't just about issuing a declaration. It's a verb. It's something a party has to keep doing, continuously, for as long as the clause is relied on. Not something said once and then left alone. Assuming it’s an actual force majeure event (which is another article altogether).

What "doing" actually means 

A force majeure clause typically requires the invoking party to show three ongoing things: that the event is genuinely beyond its control, that the event is actually preventing performance (not just making it inconvenient or unprofitable), and that the party is taking reasonable steps to mitigate and to resume performance as soon as possible. Every one of those is a continuing state of affairs, not a fact frozen at the moment the notice went out. 

That has real consequences. A party that sends a well-drafted notice on day one and then does nothing (e.g. doesn't explore alternative routing, doesn't update the counterparty, doesn't reassess as circumstances change) is not "under force majeure" by day thirty just because nobody's challenged it yet. The clause has to be actively maintained through conduct. If a mitigation step becomes available and isn't taken, the protection can lapse from that point, regardless of what the original notice said. 

Why the declaration mindset is so costly 

The trap is understandable. In the middle of a crisis, sending the notice feels like ticking the right box in the legal crisis management playbook, and everything after is ‘operational’ and no longer ‘legal’. But from a dispute perspective, it's the after that gets tested. When a counterparty later challenges reliance on the clause, the notice itself is rarely where the argument is won or lost. What matters is the evidentiary record of what was done in the weeks that followed: what alternatives were investigated, what was communicated, what changed and when.

I've seen parties assume that because the underlying event is still ongoing in the news, their own force majeure position is automatically still ongoing too. Those aren't the same thing. The event can persist while a party's own entitlement to rely on it quietly erodes, because performance has become possible again, or because reasonable steps that would restore performance haven't been taken. 

The practical discipline 

Treat force majeure as an obligation to keep working the problem, not a shield you raise once. That means dated, contemporaneous records of mitigation efforts; periodic reassessment of whether the event still genuinely prevents performance; and prompt communication when the position changes. The notice starts the clock. It doesn't stop it. 

This article is general commentary only and does not constitute legal advice.