These terms and concepts are however applied and interpreted differently by different jurisdictions. In law systems such as United States, the force majeure clauses are accepted by law, determined by the force of the events that lead to the clause. The International Chamber of Commerce interprets force majeure by standard of events that make it practically impossible for parties to continue with the contract.

The main aims of force majeure are to change the common law consequence of dissolution of a contract by inserting a suspense condition into the contract in an attempt to allow the requirement to survive great force, as well as to allow for the artificial termination of the contract until a party opts to terminate by notice.

Article 23 of the International Law Commission states that offenses of an act of a country that do not comply with an universal obligation of that country is prohibited if the specific act is a result of force majeure.

The ICC recommended clauses

The International court’s main function in legal standardizing is mainly influenced by the requirements of international trade that reflect in the practice of its arbitration court. As per the last draft review of preferred model clauses, two clauses are expected or foreseen.

The first clause is a force majeure clause that clearly stipulates the conditions that protect from liability, when performance of a contractual obligation is no longer possible.

The second foreseen clause is the hardship clause which focuses on cases where unpredicted events affect the stability of a contract and that places burden on one partner in a contract.

The allegation mechanism of force majeure in international arbitration.

The international character of ICC arbitration of force majeure is reflected on the number of cases, with various global examples. Once a contractor is pushed to a position where they cannot continue with the contract, they are expected to provide notification of the situation.

  1. Notification of force majeure status.

A notification from the supplier indicating non-performance or delay is key as it offers essential content critical to the buyer’s operation. Further, buyers should have an identification of the notices when they come to emerge, base an understanding of their opinions, and respond to with substantial understanding of the outcomes of the acts as well as omissions under Uniform Commercial Code (Schalkwyk).

If either party barred from the fulfilling its obligations as required and on a timely basis due to any Force Majeure occurrence shall be responsible for informing the other party(s) without unwarranted delay and arrive at defining reasonable efforts in termination of the Force Majeure. Under such conditions, the parties shall have inter-consultations, with a focus of minimizing all damages, any possible negative implications, as well as costs. Under the ICC jurisdiction, notification is issued when the parties involved have applied a large scope of laws and jurisdictions. A force majeure clause should provide clear description of the principle of force majeure in its specific jurisdiction and the law doctrine of frustration that allow arbitration to take place. Drawings from the effects of notification, the party barred from the fulfilment of its obligations are subject to removal from any Force Majeure cause, replacing, or providing any alternatives to the supply source affected (Schalkwyk). Parties have the opportunity to agree on the law and jurisdiction they best prefer for the ICC International arbitration.

  1. Preventing notification due to force majeure

Provision of notification follows providing of proof by the contractor that it is beyond possible to work and deliver as per original agreement. Once the proof is tabled, the parties may agree or disagree. In the event of mutual agreement between the parties, then a force majeure clause is executed and all parties part with the clause protection as per their specific jurisdiction. However, in the event where the defendant is expected to provide more proof, then the process moves to court case. The defendant is here expected to provide specific proof on the main aspects of force majeure, irresistibility, and unpredictability, as well as proof of that there was nothing that could have been done to prevent the occurrences.

Proof of force majeure status.

    1. Reasons for suspension of implementation of the agreement.

For events to be termed as great force or events that lead to force majeure, they must meet underlying factors. One of the main features of force majeure events is externality. This is to mean that the events must not be intentionally triggered by contracting parties. With proof that the defendant had nothing to do with the happening events, then the force majeure clause can apply.

Unpredictability is also a key aspect to consider when tackling a force majeure case. In operating a contract, the contractor is expected to have risk measures to prevent effects of foreseen risks and danger. In the event where the defendant is not able to take measures to curb foreseen disaster, then the law expects them to incur causes and the force majeure clause cannot apply. The defendant must provide proof that he occurrence was unforeseen and unpredictable for the force majeure clause to apply. For instance, if conducting a project in a flood prone area, the defendant would be expected to take measures as latter flood is predictable. Therefore in the case of a flood in such a scenario, the force majeure clause cannot be applicable.

Events leading to force majeure must also be proved to be irresistible. This means that jurisdictions that apply force majeure require proof especially from the contractor that there was nothing that could have been done to prevent the occurrences and their impacts.

  1. Refrain from payment due to force majeure

The occurrence of force majeure tends to protect parties from incurring any costs in the event of unmanageable situations. The clause however differs depending on the jurisdiction and some clauses are not very clear on how parties share loses in the case of force majeure. The difference in the clause definition leads to different outcome and effects. A non-specific clause is not easy to agree upon and in most cases, force majeure leads to great loses for contracting companies.

When one is awarding a contract, they do so expecting delivery of good results and quality. In the event where either party is not able to deliver because of great forces brought about by natural unavoidable occurrences, then the client is forced to suspend their project and incur costs that were previously not in budget or expected. Project suspension in the event of force majeure is manly inevitable and may go on until when the events leading to the force majeure are contained. Under jurisdiction, parties enjoy the privileges of coming together to discuss the scope of any clause associated with force majeure. Determining aspects of events and occurrences determine the length of the damage. The events are also analyzed under the clause to ensure certainty that the project cannot continue (Firoozmand, 2008). The element of proof rests on the contracting parties as per the force majeure clause. Project suspension also leads to great loses for the contractors as the clause shields the client from any damage costs.

Once proven that the probability of force majeure is high and that the clause is applicable, the parties in the contract undertake underlying options. One option for the parties is to analyze all proof and invoke the force majeure clause. The other option is for one party to invoke the clause and the other is left to appeal the force majeure. Parties can also consider taking measures to curb and manage the effect of the events that may lead to the force majeure before invoking the clause. Once the clause is applied, effects differ as per each jurisdiction. Parties may thus consider the effects before invoking the clause, depending on their jurisdiction.

Again, not all contracts will have the inclusion of the Force Majeure clause, or even the clause might not be enough to encompass external scenarios of the control of any party.  In such cases, parties in the contract should prove that a contract is subject to frustration due to unforeseen occurrences. The restraining condition might take its course whereby there is a frustration of a contract. A frustrated contract emerges when there is an absence of a fault of either party or due to an unforeseen occurrence that is out of control of a party, leading to loses for both parties (Firoozmand, 2008). In such a case, the contractual obligations of a party turn out incapable to perform, whereby the frustrating scene makes the terms of a contract drastically different compared to the contemplated cases.

Effects of acceptance of force majeure as a defense in the arbitration procedures. 

    1. Force majeure as a main defense.

Natural occurrences such as droughts, earthquakes, and tsunamis among other related and the phenomena can make business operations impossible in a diversity of aspects. Force majeure invokes some defined rules under the law, based on the provision of relief to individuals affected by such natural occurrences (Schalkwyk). In situations where the performance of a seller turned out as impracticable on a commercial basis, there i