Understanding Force Majeure in Chinese Contracts: When It Applies and How to Draft
Force majeure clauses relieve parties when unforeseeable events beyond their control prevent performance; Chinese law recognizes events like natural disasters or government actions; proper drafting defines scope, obligations and notice requirements.
Force majeure, or "bu ke kang li" in Chinese law, refers to events that are unforeseeable, unavoidable and insurmountable. When such events occur, parties may be excused from performing part or all of their contractual obligations. The concept is codified in the Civil Code and widely used in commercial contracts in China.
Typical force majeure events include natural disasters such as earthquakes, floods and typhoons; wars and riots; government actions and changes in laws; and public health emergencies like pandemics. The event must make it objectively impossible for a party to perform, not merely more difficult or expensive. Economic hardship or market fluctuations generally do not qualify as force majeure.
Under Chinese law, a party seeking to rely on a force majeure clause must prove a causal link between the event and its inability to perform, notify the other party promptly and take reasonable steps to mitigate losses. If performance can only be partially affected, the party remains responsible for performing the unaffected portion of the contract.
When drafting a force majeure clause in Chinese contracts, clearly define the scope of covered events, including natural disasters, government restrictions, public health crises and other contingencies relevant to the industry. Specify the procedures for giving notice, the time frame for suspension of performance and the consequences if the event persists, such as contract modification or termination. Include an obligation to mitigate and resume performance as soon as possible.
Careful drafting ensures that force majeure clauses provide genuine protection without becoming a loophole for avoiding obligations. Parties should also distinguish force majeure from hardship clauses, which address situations where performance is still possible but unfairly burdensome. By understanding how force majeure is interpreted in China and tailoring clauses accordingly, businesses can allocate risk appropriately and reduce uncertainty in cross‑border transactions.