When supply chains seized up in 2020, thousands of Chinese suppliers sent their foreign buyers a one-page "force majeure certificate" and went quiet. Some were genuinely excused; many were not. The litigation that followed gave us the clearest picture yet of how force majeure actually works under Chinese law — lessons worth applying before the next disruption, whatever its cause.
The statutory test is real, and narrow
Unlike common-law systems, where force majeure exists only if the contract says so, Chinese law builds it into statute. The Civil Code excuses a party from liability where performance is prevented by circumstances that are, cumulatively, unforeseeable, unavoidable and insurmountable. Three consequences follow:
- The doctrine applies even to contracts with no force majeure clause, if Chinese law governs.
- The exemption is proportionate: liability is excused only to the extent the event actually prevented performance. A two-week shutdown does not excuse a six-month delay.
- It excuses non-performance; it does not by itself rewrite prices or shift costs.
What the COVID-era cases actually decided
Chinese courts handled enormous volumes of pandemic-related contract disputes, guided by several Supreme People's Court instruments. The pattern that emerged:
- Government-ordered closures and transport bans were treated as force majeure for obligations they directly blocked — a factory legally prohibited from operating could not be liable for the resulting delay.
- Market consequences were not. Falling demand, rising raw-material prices, expensive freight and labour shortages were generally analysed under the separate doctrine of change of circumstances (情势变更) — which leads to renegotiation or judicial adjustment of the contract, not free exemption. Parties who claimed force majeure because performance became unprofitable usually lost.
- Causation was scrutinised. Sellers already in delay before the event, or who could have performed by reasonable alternative means (another port, another workshop), were not excused.
- Procedure mattered enormously. The Civil Code requires the affected party to notify the counterparty promptly and provide evidence within a reasonable time, and both sides must mitigate. Suppliers who notified late — or used the event as cover to reallocate capacity to better-paying customers — were stripped of the defence.
The CCPIT certificate: useful, not magic
The China Council for the Promotion of International Trade issued tens of thousands of force majeure certificates during the pandemic. Understand what they are: factual attestations that an event (a lockdown order, a closure notice) occurred. Chinese courts give them evidentiary weight; they do not decide the legal question of whether that event prevented this party from performing this obligation. Foreign courts and arbitral tribunals applying non-Chinese law often give them less weight still. If you receive one, respond by asking the questions the certificate does not answer: which obligation, prevented how, for how long, and what alternatives were attempted.
Drafting for the next event
The statutory doctrine is a floor. A well-drafted China contract improves on it:
- Define the event list and its edges — epidemics, government orders, export restrictions, cyber incidents — and state expressly what does not qualify (market price movements, currency fluctuation, the counterparty's subcontractor failing for its own reasons).
- Hard notice mechanics: written notice within a fixed period (for example 7 days) with supporting evidence, failing which the defence is waived to the extent notice would have allowed mitigation.
- A termination trigger: either party may terminate if the event continues beyond an agreed period — 60 or 90 days is common — with a clean rule for deposits and goods in progress.
- Allocate the hardship cases by contract rather than leaving them to a court's discretion under change-of-circumstances: price-adjustment formulas, capacity-allocation commitments, alternative-sourcing rights.
- Pair the clause with your remedies architecture — liquidated damages, payment holdbacks and a usable CIETAC arbitration clause — so the incentives to over-claim force majeure stay low.
The pandemic's core lesson was not that force majeure is generous or stingy. It is that the doctrine rewards the party with discipline: prompt notice, honest causation, documented mitigation. Build that discipline into the contract while relations are good.