Israel vulnerable to claims of ‘force majeure’

Israel faces a vulnerability in its conflict with Hamas that has so far escaped attention: potential supply chain disruptions caused by skittish carriers. A Taiwanese container ship bound for Ashdod was recently diverted to Haifa, a port city in northern Israel. The managing company, Evergreen Line, urged its customers to take delivery of the goods in Haifa, then announced that it would immediately stop fulfilling the Israeli delivery contract, invoking the doctrine of “force majeure” – superior force – to justify his decision.

This legal maneuver is suspicious. Contractual force majeure is rarely invoked and applied to permit the non-performance of contracts that have become impossible or impractical due to a catastrophic event, including natural disasters and war. The defense has always faced an uphill battle, but it is often invoked in unprecedented circumstances, leading courts or arbitration panels to rule in unpredictable ways. Even when permitted, the force majeure argument should not entirely excuse performance if alternative performance is available, as is the case in Israel.