This pandemic has taught us that "business as usual" can change dramatically from one day to the next. So if we're used to expecting the unexpected now, can we still rely on our force majeure clauses to protect us from future COVID-related restrictions?

We are still smack bang in the middle of this pandemic, and it looks like we will be for some time. So when we're contracting, it's wise to think of COVID as something we should try to account for in advance.

Back in February and March, in the early days of isolation, COVID and/or related government orders were most likely force majeure (FM) events - that is, unforeseen events, outside your control, that affect your (or your suppliers') ability to deliver on contractual obligations.

If you have forgotten how an FM clause works, don't worry, we explained it all in this update a few months ago. Basically, an FM clause helps you amend deadlines when you are affected by an FM event, or terminate where an FM event cannot be overcome within a certain timeframe.

Depending on the drafting of your contract, and the specific circumstances of your project or product, if you (or your suppliers) have been impacted by new COVID-related restrictions, you (or your suppliers) may be able to use those FM protections all over again.

If you're a supplier affected by an FM event, you should be sending out new notices of your intention to rely on an FM clause, particularising the relevant unforeseen event and identifying how, and for how long, you expect it to impact your performance under the contract.

You may receive some pushback. Most FM clauses require you to actively predict and mitigate the effects of COVID, and identify new ways of performing on your contractual obligations. That standard may be even higher now that we've already been through this once. It may not be enough that COVID simply makes performing your obligations more expensive or more complicated.

Similarly, if you are waiting on goods from a supplier who you expect will be affected by a COVID restriction, reach out early and ascertain your options. Enforcing your termination rights under an FM clause might not be the best long-term solution for you when COVID has now become part and parcel of everyday business.

We're sure you have spent many late nights contemplating the disruptions COVID has caused and will still cause to your business, so for all your new contracts, we suggest you begin drafting in the appropriate protections and processes directly, rather than trying to rely on force majeure.

We do not disclaim anything about this article. We're quite proud of it really.