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Force majeure and compensation-event clauses allocate exceptional construction risks, but their effect depends on the exact contract form and edition. NEC4 ECC has no separate force majeure regime: an exceptional event may be a compensation event under Clause 60.1(19), potentially affecting both time and cost. The FIDIC MDB Harmonised form reviewed here uses a Clause 19 force majeure mechanism with a defined event test, a 14-day notice requirement and narrower cost relief. FIDIC’s 2017 Yellow Book uses the term “Exceptional Events” instead of the older force majeure provisions.
Do not decide entitlement from the label alone. Check the executed form, edition, amendments, Contract Data, notice provisions, insurance arrangements and governing law, then prove the event’s effect on the specific obligations that could not be performed.
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At a glance
| Name | Best for | Key spec | Checked |
|---|---|---|---|
| NEC4 ECC Clause 60.1(19) | Projects using NEC4 ECC where an extraordinary event is not allocated elsewhere | No separate force majeure clause; event must be unforeseeable in the contractual sense, unavoidable by either party and not another compensation event | November 2026 |
| FIDIC MDB Harmonised, June 2010, Clause 19 | Projects using the 2010 MDB Harmonised Conditions | Listed examples plus four cumulative threshold tests; 14-day force majeure notice | November 2026 |
| FIDIC Yellow Book 2017, Exceptional Events | Projects using the 2017 Yellow Book | Uses “Exceptional Events” rather than the 1999 force majeure terminology; read the executed 2017 text and amendments | November 2026 |
The table compares contractual routes, not interchangeable legal doctrines. The NEC description comes from NEC Contracts’ comparison of NEC4 ECC and the FIDIC Yellow Book. The detailed notice, cost and termination points below come from the FIDIC MDB Harmonised Edition, Version 3: June 2010.
What is the difference between force majeure and a compensation event?
Force majeure is a contractual mechanism that can excuse or adjust performance when an exceptional event outside the parties’ control prevents obligations. A compensation event is a contract-specific change or risk event that changes the price, completion date or both under the contract’s defined procedures. The same incident can look like force majeure in one form and a compensation event in another, while an event that is compensable under a separate clause may be excluded from the exceptional-event route.
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The practical differences are:
- Structure: NEC4 ECC routes the relevant risk through its compensation-event list; it does not create a standalone force majeure clause. The 2010 FIDIC MDB form has a standalone Clause 19 headed “Force Majeure.”
- Threshold: NEC4 asks whether neither party could prevent the event, whether an experienced contractor would have judged it exceptionally unlikely at the contract date, and whether another compensation event already covers it. FIDIC 2010 applies four cumulative conditions: the event must be outside the party’s control, not reasonably provided against before contract, not reasonably avoidable or overcome after arising, and not substantially attributable to the other party.
- Relief: NEC Contracts describes Clause 60.1(19) as permitting time and cost relief when its tests are met. Under FIDIC 2010, extension of time is available for qualifying delay, but additional cost is limited to specified categories and conditions.
- Process: Notice, contemporary records, mitigation and assessment rules can determine recovery even when the event itself is extraordinary.
Does NEC4 ECC have a force majeure clause?
No. As the official NEC comparison puts it, “In contrast to some other well-known standard form contracts, NEC4 ECC does not provide for a separate force majeure regime.” The relevant route is Clause 60.1(19), a compensation event for an exceptional event that satisfies the NEC test and is not dealt with by another compensation-event provision.
That drafting choice matters. A party should not simply label a flood, government restriction, epidemic or supply disruption “force majeure” and assume NEC relief. The project manager must assess whether the event meets Clause 60.1(19), whether it prevented or materially affected planned work, and whether a more specific NEC clause allocates the risk. The NEC comparison also distinguishes issues such as physical conditions and changes in law, which may have their own compensation-event treatment.
What does NEC4 Clause 60.1(19) require?
Clause 60.1(19) uses a general test rather than an exhaustive catalogue of disasters. The event must satisfy all of the following:
- Neither party could prevent it. The question is not whether the contractor could have reduced inconvenience, but whether the event itself was preventable by either contracting party on the facts.
- It was exceptionally unlikely at the contract date. An experienced contractor must have judged the event so unlikely that it would have been unreasonable to allow for it when the contract was made. Ordinary volatility or a foreseeable seasonal condition is therefore difficult to fit within this limb.
- No other compensation event covers it. If the contract already allocates the same risk through another compensation-event clause, Clause 60.1(19) is not a second route to recovery.
When the test is met, NEC Contracts states that the clause can provide both time and cost relief. That does not remove the need to follow NEC notification, quotation, assessment and record requirements. The executed contract and Contract Data should be checked for who must notify, when the project manager can notify on the contractor’s behalf, and how the event is assessed.
What does the FIDIC 2010 force majeure clause cover?
Clause 19 of the June 2010 FIDIC MDB Harmonised Conditions combines a general definition with illustrative event categories. An example is not an automatic trigger: the event must still satisfy the general conditions and must have prevented the relevant performance.
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The listed examples include:
- war, hostilities, invasion and foreign enemies;
- rebellion, terrorism, sabotage by persons outside the Contractor’s Personnel, revolution, insurrection, military or usurped power, civil war, riot, commotion and disorder;
- external strikes or lockouts;
- specified munitions, explosive materials, ionising radiation or radioactive contamination, except where attributable to the contractor’s use of those materials; and
- natural catastrophes such as earthquake, hurricane, typhoon or volcanic activity.
The general test is cumulative. The event must be outside the affected party’s control; not reasonably provided against before entering the contract; not reasonably avoidable or overcome after it arises; and not substantially attributable to the other party. The 2010 FIDIC MDB General Conditions should be read alongside the Particular Conditions and any amendments.
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What changed in FIDIC Yellow Book 2017?
FIDIC’s 2017 Yellow Book replaced the 1999 form’s force majeure terminology with “Exceptional Events.” The change of label does not make every extraordinary occurrence compensable, and it does not make the 2010 MDB wording a substitute for the executed 2017 contract. Definitions, notice mechanics, claims procedures and amendments must be checked in the applicable edition.
When comparing a 2017 Yellow Book project with the 2010 MDB form, identify the actual book, publication year, Particular Conditions and governing law first. A conclusion drawn from Clause 19 of the 2010 MDB form may be wrong for a 2017 Yellow Book contract even if the event is identical.
Which construction risks are usually covered, and which are not?
No risk is covered merely because it is severe. The event must meet the relevant form’s test, cause a contractual prevention or delay, and comply with notice and evidence requirements. The following matrix is a practical starting point, not a substitute for the executed clauses.
| Risk or event | NEC4 ECC approach | FIDIC 2010 MDB approach | What must be checked |
|---|---|---|---|
| War, invasion or civil war | Potential Clause 60.1(19) event if the NEC test is met and no other clause applies | Express example, subject to the four general conditions | Actual prevention, affected obligations, country-specific wording and notices |
| Terrorism, rebellion or specified civil disorder | General Clause 60.1(19) test | Express examples, still conditional | Whether the act falls within the defined category and was outside the party’s control |
| Earthquake, hurricane, typhoon or volcanic activity | General Clause 60.1(19) test | Express natural-catastrophe examples, subject to the general test | Site impact, prevention, mitigation and insurance |
| External strike or lockout | Potential only if the NEC test is satisfied; labor risks may be allocated elsewhere | Listed when external to the contractor’s personnel and otherwise qualifying | Who organized the action, foreseeability and contractual allocation |
| Material-price inflation | Not automatically Clause 60.1(19); check price-adjustment and change provisions | Not automatically force majeure | Price-adjustment terms, causation and governing law |
| Ordinary supplier delay or labor shortage | Usually requires analysis under the specific supply, access or employer-risk clauses | Not automatically a force majeure event | Responsibility, reasonable alternatives and contemporaneous records |
| Government action or change in law | May be addressed by a separate NEC compensation-event provision | Must be analyzed under the contract’s other clauses and applicable law | Do not use force majeure as a duplicate remedy |
The available data does not establish a universal answer for pandemics, sanctions, export controls, port closures or utility interruptions. Their treatment depends on the wording, the causal chain and the law governing the contract. A party should explain precisely what was prevented rather than rely on the event’s headline name.
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Does force majeure give a contractor extra time or money?
Time and money are separate questions. Under the FIDIC 2010 MDB form, Clause 19.4 provides an extension of time when completion is delayed by a qualifying force majeure event. Additional Cost is narrower: the clause limits recovery to specified event categories and, for some categories, events occurring in the Country. Amounts for damage to the Works or Goods are also subject to the stated insurance offset.
Payment obligations are not excused by the FIDIC 2010 force majeure clause. The affected party is excused from the performance that the event prevents for as long as the prevention lasts, subject to the clause, but money already due under the contract remains payable. The contractor must also show the delay to completion and comply with the separate claims procedure.
NEC4 is structured differently. NEC Contracts describes a qualifying Clause 60.1(19) event as capable of producing both time and cost relief through the compensation-event process. The amount and date still depend on the NEC assessment rules, the accepted programme and records; “exceptional” does not mean automatic payment.
What notices and records are required under FIDIC 2010?
The 2010 MDB form contains distinct notice obligations that should not be collapsed into one deadline.
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One free scan finds every outdated or missing driver and matches the right update for your exact hardware.Free scan · exact hardware match- Force majeure notice: The affected party must notify the other party within 14 days after it became aware, or should have become aware, of the event and circumstances. The notice should identify the event and the obligations it prevents.
- Mitigation and cessation notice: Each party must use reasonable endeavours to minimize delay. The affected party must notify when it ceases to be affected.
- Contractor’s claim notice: Clause 20.1 separately requires the contractor to give notice of a claim as soon as practicable and no later than 28 days after awareness, followed by supporting particulars and contemporary records.
Missing the 14-day force majeure notice can create a contractual problem even if a later Clause 20.1 claim notice is timely, and vice versa. Check amendments because Particular Conditions may alter periods or procedures. Keep daily programme updates, delivery records, correspondence, labor and plant logs, site photographs, instructions, weather or authority records, and a clear schedule showing the activities actually prevented.
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How should a project team analyze an alleged exceptional event?
Use this sequence before asserting entitlement:
- Identify the exact contract. Record the form, edition, amendments, Contract Data, Particular Conditions and governing law. Determine whether the project uses NEC4 ECC, FIDIC MDB 2010, FIDIC Yellow Book 2017 or another form.
- Map the event to every possible clause. Check compensation events, changes in law, physical conditions, employer risk, insurance and suspension provisions before selecting force majeure or Clause 60.1(19).
- Test the threshold. Apply each cumulative element: control, foreseeability at contract date, avoidance or overcoming, attribution and any “not otherwise covered” requirement.
- Prove prevention and causation. Identify the obligation, activity, resource or access route that could not proceed. Separate critical-path delay from disruption that did not affect completion.
- Give every required notice. Diary the earliest awareness date, serve the form-specific notice, and issue any separate claim notice within its own period.
- Mitigate reasonably. Consider resequencing, alternative suppliers, substitute access, protection of the Works and safe suspension. Record why an alternative was unavailable or disproportionate.
- Separate time from cost. Calculate extension-of-time effects independently from recoverable cost, insurance proceeds, prolongation, disruption and excluded overheads.
- Update the record when the event ends. Notify cessation, identify residual effects and preserve the programme and cost evidence needed for assessment.
Can either party terminate for prolonged prevention?
Under the FIDIC 2010 MDB text, either party may terminate if substantially all of the Works are prevented continuously for 84 days, or for multiple periods totaling more than 140 days, by the same notified force majeure event. The form also contains a release-from-performance provision for events that make performance impossible or unlawful, or otherwise entitle release under governing law.
Those thresholds are specific to the cited 2010 MDB form. They should not be generalized to FIDIC 2017, another FIDIC book, an amended contract or a different jurisdiction without reading the executed wording. Termination also triggers valuation, payment, taking-over, demobilization and evidence questions that need separate analysis.
What are the most common mistakes?
- Treating the label as the entitlement. “Force majeure” in an email does not satisfy NEC’s compensation-event test or FIDIC’s definition.
- Assuming a listed FIDIC example is automatic. War, strikes and earthquakes remain subject to the general conditions, causation and notice.
- Combining time and money. A qualifying delay may produce an extension of time while cost recovery is excluded or insured.
- Using one notice for two clauses. FIDIC’s 14-day Clause 19.2 notice and 28-day Clause 20.1 claim notice serve different purposes.
- Ignoring other risk allocations. Inflation, physical conditions, change in law, employer prevention and supply-chain risks may have dedicated clauses.
- Applying the wrong edition. The 2010 MDB force majeure text and the 2017 Yellow Book Exceptional Events provisions are not interchangeable.
- Failing to prove the counterfactual. A party must show what could not be done, why reasonable alternatives failed, and how the event affected the accepted programme and cost.
What should a force majeure or compensation-event notice contain?
A useful notice is factual and clause-specific. State the contract and clause relied on; identify the event, date and location; describe the obligations or activities prevented; explain the expected effect on completion; list immediate mitigation; reserve time and cost rights; and identify the records that will follow. Avoid asserting that every consequence is recoverable before the contract test and insurance position have been checked.
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How we picked the comparison points
The comparison focuses on the issues that change a project decision: contract structure, threshold tests, listed risks, time relief, cost relief, notice periods, mitigation, records, termination and edition-specific wording. It uses the official NEC comparison and the primary FIDIC MDB General Conditions cited above, while treating governing law and bespoke amendments as controlling qualifications.
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Frequently Asked Questions
Does a pandemic automatically count as force majeure in a construction contract?
No. A pandemic may qualify only if the particular contract’s definition and threshold tests are met, the event actually prevents or delays contractual performance, and notice and mitigation duties are satisfied. Government restrictions, supply disruption and labor effects should be analyzed separately rather than assumed to inherit the pandemic’s status.
Can a subcontractor claim force majeure when the main contract does not?
Only if the subcontract contains an applicable entitlement or another clause passes the risk through. A subcontractor’s event may be compensable under its own wording even when the main contract gives the main contractor no corresponding relief, leaving the contractual chain exposed.
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Preserve the notice trail, accepted and updated programmes, delivery and procurement records, labor and plant logs, site diaries, authority instructions, photographs, mitigation decisions and a quantified time-and-cost analysis. The evidence should connect the event to specific prevented activities and distinguish critical delay from general inconvenience.
Are force majeure clauses interpreted the same way in every country?
No. Governing law can affect interpretation, causation, notice consequences, impossibility and available remedies. The contract’s wording and amendments remain central, and the cited NEC and FIDIC materials are not a jurisdiction-specific legal opinion.
