39See Marcel Fontaine and Filip de Ly, Drafting International Contracts: An Analysis of Contract Clauses (Brill Academic 2006), 403.
40Conditions of Contract for Construction, International Federation ofConsulting Engineers, Art 19.1; see also United Nations Convention on Contracts for the International Sale of Goods, Art 79(1) ('A party is not liable for a failure to perform any of his obligations if he proves that the failure was due to an impediment beyond his control and that he could not reasonably be expected to have taken the impediment into account at the time of the conclusion of the contract or to have avoided or overcome it, or its consequences.').
41 See Fontaine and de Ly, n 39 above, 403; Konarski, n 4 above, 425 (noting that 'more and more clauses stipulate that the event need not be unforeseeable, but simply beyond the reasonable control of the parties').
42See Fontaine and de Ly, n 39 above, 405; but see Hess Corp v Eni Petroleum US, LLC & Eni USA Gas Marketing LLC, 435 NJ Super 39 (App Div, 9 January 2014). In Hess, the parties had entered into a contract for the sale of natural gas that did not require that the gas be produced from a specified field or be transported to the delivery point via a specified route. In 2008, a leak in a pipeline resulted in the seller being unable to ship gas from its production fields in the Gulf of Mexico to the delivery point via the pipeline. The seller claimed force majeure on the basis that the contract included as a force majeure event an interruption and/or curtailment of firm transport by a pipeline transponder. The buyer disputed the force majeure claim, and the US court agreed, ruling that the seller's performance should not be excused by force majeure because nothing in the contract obliged the seller to ship the gas to the delivery point via a specific route, or for the gas to have been produced from a specific source. The delivery point itself was unaffected and alternative sources of natural gas were available at the delivery point at such time. The court reasoned that there was nothing in the contract that prevented the seller from purchasing natural gas from other sources and supplying it to the buyer at the delivery point.
43Under English law, clauses that refer to performance being 'prevented', 'hindered' or 'delayed' by force majeure may of course be subject to different interpretations. See, eg, Tennants (Lancashire) Ltd v CS Wilson & Co Ltd  AC 495.
44See, eg, ICC Force Majeure Clause 2003, n 6 above, Art 1 (requiring a party to prove '(a) that its failure to perform was caused by an impediment beyond its reasonable control; and (b) that it could not reasonably have expected to have taken the occurrence of the impediment into account at the time of the conclusion of the contract; and (c) that it could not reasonably have avoided or overcome the effects of the impediment').
45See Fontaine and de Ly, n 39 above, 406; see also Al Qurashi, n 9 above, 280 (providing the following example of a clause in an agreement entered into by Brazil: 'In accordance with the provisions of Article 1058 of the Brazilian Code, neither Party shall be liable for losses resulting from a fortuitous event or force majeure.').
46See Fontaine and de Ly, n 39 above, 407.
47ICC Case No 11265.
48Ibid s 128.
49Ibid s 129.
50See 'Force majeure and the applicable law' above.