US Government shutdown frustration? Unlikely, and it may not be force majeure either!

Having taken the record for the longest US government shutdown (42 days), the 1 October 2025 U.S. government shutdown , it leaves in its wake  unprecedented delays and disruption to regulatory approvals, transport and  services.

The U.S. government shutdown has led to furloughs of hundreds of thousands of federal employees, suspension of non-essential services, and delays in regulatory approvals. Contractors face uncertainty over payments and access to federal facilities. For businesses reliant on U.S. government interaction—such as defense contractors, healthcare providers, and regulated industries—the shutdown may impede or delay performance.

In much the same way as delays and disruption caused by COVID-19 focused the attention of in-house legal teams on force majeure clauses in contracts as a tool to avoid liability for delay, the delays and disruption caused by the US government shutdown will inevitably bring force majeure clauses back into the legal spotlight for parties issuing force majeure notices as a shield against liability and recipients of force majeure notices assessing whether the notice is justifiable or valid.

The governing law of a contract will determine the extent to which force majeure applies, and can generally be allocated across two camps:  contracts governed by common law (England and its former colonies), where force majeure operates only if written into contractual terms, and contracts governed by civil law (many countries in Europe and Asia, and former French colonies in the USA and Canada), where force majeure can be given effect by codified laws.

This alert highlights differences in the treatment of force majeure in two jurisdictions:  England (common law), and Thailand (civil law), and highlights common pitfalls of incorrectly assessing the occurrence of force majeure.

Contracts governed by English law

Under English law, force majeure has no inherent meaning and applies only if expressly defined in the contract. Courts interpret force majeure clauses strictly, focusing on the wording agreed by the parties. If a contract merely states that “force majeure applies” without defining the term, the clause is likely void for uncertainty¹. A well-drafted force majeure clause typically defines qualifying events, sets the threshold for impact, and includes whether performance must be prevented or merely hindered, specific notice requirements, and provides for termination rights if the event persists beyond a certain period. English courts generally reject claims based on economic hardship or commercial impracticality unless expressly included in the clause. In Davis Contractors Ltd v Fareham UDC², the House of Lords held that increased costs and delays did not amount to frustration, reinforcing the principle that contracts are enforced even when performance becomes onerous.

Where no force majeure clause exists, parties may consider the doctrine of frustration. Frustration discharges a contract when an unforeseen event occurs after formation, making performance impossible, illegal, or radically different from what was contemplated. However, the threshold is high. In The Sea Angel³, the court emphasized that frustration is not triggered by mere hardship or inconvenience. This means that, absent a force majeure clause, the US government shutdown would rarely justify non-performance under English law.

Force majeure clauses referencing “acts of government,” “government order,” or “regulatory action” may cover shutdown-related disruptions. However, courts often apply rules of interpretation⁴, meaning catch-all phrases are interpreted in light of listed examples. If the clause lists war and riots but not administrative closures, a shutdown may fall outside its scope unless expressly included.

Under English law, relief for delays and disruption depends on the contract language. If the force majeure clause includes “government shutdown” or broadly covers “government action,” the affected party may suspend obligations. If not, the shutdown alone is unlikely to excuse performance.

When a force majeure clause applies under English law, again, as a creature of contract its effect depends entirely on the contract wording. Typically, the affected party is excused from performing its obligations for as long as the event continues, without liability for delay or non-performance during that period. The contract usually remains in force, and performance must resume once the event ends. Many contracts provide for an extension of time to complete obligations, while others allow termination if the event persists beyond a specified period, often three to six months. Force majeure rarely provides for compensation; each party generally bears its own costs and claims under its own insurance. Strict compliance with notice requirements and mitigation duties is essential, as failure to notify promptly or take reasonable steps to overcome the disruption can invalidate a claim. Courts interpret these clauses narrowly, so if the event only makes performance more expensive or inconvenient, relief will not apply unless expressly stated.

The COVID-19 pandemic highlighted the importance of precise drafting in force majeure clauses. Many businesses faced disputes over whether pandemic-related restrictions constituted force majeure events. Courts examined whether terms such as “epidemic,” “pandemic,” or “government restrictions” were included in the clause. The pandemic underscores that generic language is insufficient; specific references to foreseeable risks such as health crises or government shutdowns are critical for effective risk allocation.

Case law reinforces this restrictive approach. In Metropolitan Water Board v Dick Kerr & Co⁵, despite broad wording (“howsoever caused”), the House of Lords held that a force majeure clause did not cover delays caused by wartime government orders, illustrating the narrow interpretation of such clauses. More recently, in RTI Ltd v MUR Shipping BV⁶, the Supreme Court reaffirmed that force majeure clauses require strict compliance with contractual terms, including mitigation obligations. The affected party must show the event could not be overcome by reasonable endeavors.

To ensure enforceability for future government shutdowns, contracts should include specific references to government shutdowns, regulatory delays, and acts of civil authority. Broad catch-all language such as “any event beyond the reasonable control of the parties” can help, but courts interpret such phrases narrowly. Clauses should also impose mitigation duties, require timely notice, and define thresholds for termination if disruption persists. Businesses should review existing contracts to determine whether force majeure provisions cover government shutdowns or regulatory delays, assess the impact on performance, and comply with notice requirements. Looking ahead, lessons learned from this shutdown and from COVID-19 should inform future drafting, particularly for cross-border transactions.

Under English law, the U.S. government shutdown might be a force majeure event but only if the contract expressly provides for it. Absent specific force majeure language, parties face the stringent doctrine of frustration—a remedy rarely available. The shutdown serves as a timely reminder that force majeure clauses are not boilerplate; they are critical risk mitigation tools that demand careful drafting and review.

Force majeure under Thai law

The Thai Civil and Commercial Code (CCC) defines force majeure and sets out the consequences of force majeure in certain situations: the result is that the Thai statutory treatment of force majeure will automatically apply to certain contracts and circumstances unless expressly excluded. 

The CCC denotes an event of force majeure as any event which may occur or may cause disaster, which could not be prevented even if the person against whom it happened or threatened to happen were to take such appropriate care as might be expected from him in his condition and in such situation. 

The CCC provides remedies for force majeure in specific cases - these remedies will be available even if the underlying contract is silent on force majeure, and it will therefore be necessary to include additional wording to exclude or modify these remedies:

• Tort⁷ Persons in possession or control of a vehicle are not responsible for injury caused by the vehicle if the person can prove that the injury results from force majeure;
• Carriage of goods⁸ Carriers of goods are not liable for any loss, damage or delay in delivery of the goods entrusted to it, if the carrier proves that the loss, damage or delay is caused by force majeure;
• Carriage of passengers⁹ Carriers of passengers are not liable to passengers for personal injuries or damages immediately resulting from delay suffered by reason of the transportation, if the injury or delay is caused by force majeure; 
• Hotels¹⁰ Hotel proprietors are not liable for loss or damage to the property of guests caused by force majeure;
• Prescription periods¹¹ Force majeure can result in a 30-day extension to prescription periods under Thai law (the period in which legal action must be commenced if a claim is to be pursued) if force majeure prevents a claimant from interrupting the prescription period (e.g. by commencing legal proceedings). 

It is possible to include detailed force majeure provisions in Thai law contracts to clarify what is and what is not included in force majeure – as a force majeure clause relying on the CCC definition of force majeure could invite force majeure claims for almost any event that could not have been prevented by a counterparty taking appropriate care, a well drafted definition of force majeure will often be useful in predictably limiting the scope  of force majeure in Thai law contracts.  

Pitfalls of getting force majeure wrong

It’s common for well drafted agreements in both civil law and common law jurisdictions to contain extensive definitions of force majeure. Force majeure definitions comprising an extensive list of natural disasters without reference to government action are unlikely to extend to the US government shutdowns.  

There is a large risk in formally claiming force majeure due to the US government shutdown if the US government shutdown does not clearly come within the definition of force majeure in the contract: wrongfully claiming force majeure may entitle the other party to terminate the contract on the grounds of repudiation, which would typically be followed by a claim for substantial damages for wrongful termination.

At the other end of the spectrum, force majeure definitions that have been drafted to include “action or inaction by Governmental Authorities” are more likely include the US government shutdown as force majeure (depending on the definition of “Governmental Authorities”), enabling a party affected by the US Shutdown to claim force majeure. 

Even in these cases, a careful approach is required, as contracts will often also require the party affected by force majeure to notify the other party of the occurrence of the event of force majeure. Asserting force majeure without complying with the notification requirements, or issuing a force majeure notice after the required notification period, may entitle the other party to terminate the contract for repudiation. 

Time is therefore often of the essence in (i) determining whether delays and disruption caused by the US government shutdown are force majeure and (ii) issuing force majeure notices in time to obtain the benefit of the contract’s force majeure clause – failing to act in time can result in a costly missed opportunity for a party affected by force majeure. 

¹ British Electrical and Associated Industries (Cardiff) Ltd v Patley Pressings Ltd

² [1956] AC 696

³ [2007] EWCA Civ 547

⁴ E.g. ejusdem generis

⁵ [1918] AC 119

⁶ [2024] UKSC 18 

⁷ Section 437 CCC

⁸ Section 616 CCC

⁹ Section 634 CCC

¹⁰ Section 675 CCC

¹¹ Section 193/19 CCC

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