Nine Months In: Has Your Force Majeure Position Quietly Become a Hardship Position?

Executive Summary

If you invoked force majeure over the Strait of Hormuz disruption early on around March 2026 and are still leaning on that original notice, don’t assume time is on your side. The longer this disruption runs, the harder it becomes to show that performance is still impossible rather than merely more difficult or costly – and that is a materially weaker legal position than the one you started with.

The fix isn’t to abandon the claim. It’s to recognise that the ground has likely shifted from an impossibility argument (force majeure) to an excessive-onerousness argument (hardship) – which changes both the remedy you’re entitled to and the evidence you need to support it.

Shipping stocks are pricing in a crisis your contract still calls exceptional

Freight and shipping stocks are trading at decade highs. Not because of a fresh shock – the Strait of Hormuz has been effectively closed to normal commercial traffic since the ceasefire collapsed in early July – but because the market has stopped treating the disruption as a temporary anomaly and started pricing it as the operating environment. Insurers, carriers and analysts increasingly plan around it rather than through it. That’s good news if you own shipping stocks. It’s a warning sign if your business is still resting on a force majeure notice you sent months ago and haven’t revisited since.

Persistence attacks impossibility, not foreseeability, and that changes your remedy

It’s tempting to frame the problem as: the market now treats this as normal, so force majeure’s unforeseeability requirement no longer holds. That’s not quite right, and it’s worth being precise about why. Unforeseeability is generally tested at the point the relevant obligation was undertaken, not by whether markets have since adjusted to a new normal. A contract signed before this cycle of ceasefire and collapse became public knowledge isn’t retroactively stripped of an unforeseeable trigger just because everyone has since gotten used to it.

What actually erodes with time is a different element: impossibility. Force majeure typically requires performance to be impossible, not merely harder, slower or costlier. Nine months in, a manufacturer that has had the opportunity to reroute shipments, requalify alternative suppliers, or adjust production schedules faces a harder question: is performance still genuinely impossible, or has it become a management problem the business has chosen not to solve? Tribunals and counterparties will ask exactly that, and the longer a notice sits unrefreshed, the more exposed it becomes on this point specifically. There is also a duty-to-mitigate dimension: even where a clause doesn’t spell it out, the passage of time without evident mitigation efforts tends to work against the party invoking the clause.

This is the real pivot, and it usually runs from impossibility to excessive onerousness, not from unforeseeable to foreseeable. That reframing matters because it points toward a different remedy: hardship doctrines address situations where performance remains possible but has become excessively burdensome, and they typically lead to renegotiation rather than excuse.

What this means if you’re still relying on a notice you sent months ago

If you invoked force majeure early in this cycle and haven’t revisited the notice since, the practical question isn’t whether the underlying disruption was real – it almost certainly was, and remains ongoing. The question is whether you can still credibly argue impossibility, or whether the honest description of your position today is that performance is possible but no longer commercially bearable on the original terms. Those two arguments are supported by different evidence: impossibility needs a paper trail showing genuine attempts to find alternatives and why they failed; hardship needs an evidenced account of the cost or margin impact and a renegotiation ask, not a suspension of obligations. Manufacturers who keep citing an unrefreshed FM notice while the facts have moved toward hardship risk arguing the wrong case, on the wrong evidence, for the wrong remedy. The same discipline about evidence over assertion applies whether you’re issuing a notice or receiving one, as covered in our earlier briefing on responding to a supplier’s force majeure notice.

What Malaysian manufacturers should do now

• Pull the original FM notice and check what it actually claims – impossibility, or something closer to hardship dressed up in FM language.

• Document, in writing, the mitigation steps taken (or attempted and why they failed) since the notice was first sent.

• Recalculate whether the honest position today is “performance is impossible” or “performance is possible but no longer economically viable” – and align the next communication to whichever is true.

• Check whether the contract even has a hardship mechanism. As we’ve set out before, this differs contract to contract, and Malaysian courts enforce contracts as written, not as parties might wish they’d drafted them.

Prof. Dr. Harald Sippel, MBA is an Austrian-qualified attorney (Rechtsanwalt) and Senior Foreign Advisor at Aqran Vijandran in Kuala Lumpur, supporting foreign companies – with particular depth in Europe and Korean client work – on Malaysian matters across all practice areas. He edited the book Force Majeure and Hardship in the Asia-Pacific Region and regularly advises manufacturers on when a force majeure position has drifted into hardship territory as Middle East disruption drags on.