When a freight spike or an export-licence suspension hits, buyers and suppliers both reach for the force majeure clause. Chinese law has a statutory definition of force majeure and a separate doctrine for changed circumstances, and neither works the way many foreign templates assume. First check which law governs your contract. Then decide what you want relief for, and write it down.
1. Which law applies decides everything
The PRC Civil Code rules below apply only if Chinese law governs the contract. If the contract chooses another law, that law decides what force majeure means. The UN Convention on Contracts for the International Sale of Goods (CISG) adds a second layer: where both parties are in contracting states, which include China and many of its trading partners, and the contract does not exclude it, the CISG can apply ahead of domestic law. Its Article 79 covers a similar ground, an impediment beyond a party’s control that it could not reasonably have foreseen, avoided or overcome. So the question for your contract is not “Civil Code or CISG”, but “which law governs, and is the CISG excluded?”
2. The statutory baseline under Chinese law
- Article 180: force majeure (不可抗力) is an objective circumstance that is unforeseeable, unavoidable and insurmountable. All three must be met.
- Article 590: a party unable to perform because of force majeure is exempted in whole or in part, depending on the impact. It must promptly notify the other side and provide proof within a reasonable period. If the force majeure arises after the party was already late, the exemption does not apply.
- Article 563(1): either party may terminate the contract if force majeure makes its purpose impossible to achieve.
Article 590 is generally regarded as a default rule. Law-firm commentary notes that Chinese courts and tribunals still respect what the parties have agreed, so a clearly drafted clause does matter. It also means that a clause which only gestures at “acts of government” leaves the statutory test to do the work.
3. Cost increases are usually not force majeure
Commentary from several law firms on tariffs and sanctions says courts seldom accept a force majeure defence where performance has become more expensive rather than impossible, because the change was foreseeable or could be overcome. We did not find a Chinese ruling specifically on freight rate spikes, so treat freight in the same way: do not assume it qualifies. If you want relief when freight or war-risk surcharges rise, write a price-adjustment clause. Do not rely on the force majeure label. For sample clauses on surcharges, rerouting and payment milestones, see our guide to surcharge and rerouting clauses for China orders.
4. The other doctrine: changed circumstances
Article 533 (情势变更) is separate. It applies where, after the contract was made, the basis of the contract changes in a major way that the parties could not foresee, that is not an ordinary commercial risk, and that makes continued performance clearly unfair. The affected party can ask the other side to renegotiate. If that fails within a reasonable time, it can ask the court or arbitration body to modify or terminate the contract. The bar is high: ordinary price movements are generally treated as commercial risk. Practitioners also treat it as an alternative to a force majeure claim, not an addition to it.
5. Notice and proof
Article 590 asks for prompt notice and proof within a reasonable period. It does not name a specific certificate. A certificate from the China Council for the Promotion of International Trade (CCPIT) is commonly used as supporting evidence, but it is not required by the statute, and it does not settle the question: the tribunal still decides whether the event actually caused the non-performance. Keep the documents that show the event and its effect, for example carrier notices, port or government announcements, and correspondence.
6. What to write in the contract
- Governing law and the CISG: state which law governs, and whether the CISG is excluded.
- A price-review clause, not just a force majeure clause: if you want to renegotiate when freight, surcharges or duties pass a threshold, write the threshold and the process. Do not leave it to the statutory test.
- Notice and proof: set a notice period and name the kinds of acceptable proof, without tying the contract to a single issuer.
- If the event lasts: say after how many days either side may terminate, and that any advance payment for the affected goods is refunded.
- Align the two language versions: use 不可抗力 for force majeure, and state a price-review clause or 情势变更 separately. Say which version prevails.
The bottom line
Under Chinese law, force majeure is narrow by statute, but the parties can agree more. A freight spike or a surcharge is more likely to be treated as a commercial risk than as force majeure, so if you want protection against one, write the threshold and the remedy into the contract, and check which law will read it.
If you need the force majeure notice, proof and price-review lines written into your PI in English and Chinese, I can prepare the wording and issue a stamped set under our bilingual translation company seal when you need one. See what this covers.
Based on Articles 180, 533, 563 and 590 of the Civil Code of the People’s Republic of China, Article 79 of the CISG, and published commentary from law firms. Courts’ treatment depends on the facts, the contract wording and the governing law. For a large order, have a China-qualified lawyer review the clause. General sourcing information, not legal advice.