So you want to contract in the Congo? Force majeure clauses and resource nationalism

PHOTO: Secretary Rubio Hosts Democratic Republic of the Congo-Rwanda Peace Agreement on 27 June 2025 , Freddie Everett on Wikimedia Commons

On 22 February 2025, after three consecutive years of falling cobalt prices, the Democratic Republic of the Congo (DRC) announced a four-month freeze on cobalt exports. This freeze of the DRC’s main export was to be immediate, preventing supply from extraction sites that were responsible for 76% of global cobalt production in 2024. A critical resource for the production of rechargeable batteries, built into everyday staples like electric vehicles (EVs) and smartphones, had become captive to resource nationalism overnight.

Major international cobalt suppliers in the DRC were forced to react. Luxembourg-based Eurasian Resources Group declared force majeure on its contracts in March 2025. After the DRC extended the export freeze in June, Anglo-Swiss multinational Glencore also declared force majeure on cobalt deliveries alongside IXM SA — owned by CMOC (China Molybdenum), operator of the world’s two largest cobalt mines in Katanga, DRC.

For different reasons, the DRC delivered a separate ban in the same month on the export of minerals from 38 mines in North and South Kivu. Lying 1000 kilometres north of the Katanga region responsible for major cobalt production, Kivu is a repository of gold, coltan and 3T extraction sites. It is also the central battlefield for rebel groups controlling parts of Eastern DRC territory, whose capacity to wage war, the UN claims, is partially funded by these smuggled minerals. The DRC’s ban on Kivu exports is ostensibly a sledgehammer approach to weakening rebel groups in a region whose instability is currently “the biggest priority and challenge” for the DRC government, according to the Cobalt Institute. 

The DRC sits at the precipice of two rising menaces — resource nationalism and resource conflict. As critical minerals grow in value during the global energy transition, a key question has arisen. What is international contract law’s capacity to protect private persons attempting to trade from the trenches of mounting geopolitical tides, breeding embargo and war? 

What is the Force Majeure Clause?

Although it has no strict definition, a force majeure clause typically sets out the instances in which parties are excused from continuing to perform their contractual obligations where an uncontrollable change in circumstances makes performance impossible, advantaging suppliers especially from avoiding liability. The force majeure clause specifies what each party owes and each party receives in this event. A force majeure clause is so essential that legal advisers who fail to recommend it are at “a real risk of a professional negligence action”.

The Importance of a Force Majeure Clause

Businesses operate and make decisions based on risk management and exposure to liability. An unacceptable amount of risk exposure means an unacceptable contract. Determining where international contract law’s interpretation of the force majeure clause places each party on the risk-balancing lever is critical to understanding the future for international contracts in an era of rising resource nationalism. Force majeure clauses have already taken on an increasingly important role in negotiations between contracting parties in recent years, and this trend looks set to continue.

Force Majeures in Action

All well-drafted contracts allocate risk between parties. Where contractual performance fails due to embargo, conflict or any other extreme event, the question the force majeure clause asks is whether the non-performing party had or had not assumed the risk of that event. In other words, should the force majeure clause excuse a supplier operating in the DRC for its failure to deliver?

The Force Majeure test

Cobalt suppliers in the DRC wanting to activate force majeure protection will have to prove the event preventing contractual performance — the impediment — was unforeseeable, unavoidable and insurmountable, otherwise it will be held that they took on the risk.

Insurmountability

Restricted access to resource monopolies — such as the US’ 1973 embargo of its 70% share of global soybean production — are insurmountable where there are no reasonable alternatives to fulfill contractual obligations. If possible, commodity suppliers have a duty to find commercially reasonable substitutes at their own costs. Because the DRC’s export restrictions will largely determine cobalt market prices in a similar fashion, such rapid increases are almost certainly “insurmountable” for suppliers.

Unavoidability

An impediment being “unavoidable” means the impediment was beyond the obligor’s “sphere of control” — the supplier could not have taken actions to prevent the impediment occurring. In the case of a conflict or blanket export ban applicable to all, unavoidability is categorically made out. 

Unforeseeability

Therefore — by process of elimination — we arrive at the key element that cobalt suppliers with a non-exhaustive force majeure clause must answer. Are export embargoes and conflict unforeseeable?

Reference to the list of applicable events in paragraph 3 of the ICC Force Majeure Clause 2020 (ICC FMC) — the international standard — indicates that both embargoes and conflict cannot reasonably be foreseen at the time of contract formation. Any contract following the ICC FMC — listing embargoes and war as force majeure events — would thus give broad protection to cobalt suppliers who find themselves unable to deliver due to an embargo or conflict; inversely giving purchasers limited recourse. 

However, this is not the end of it. The ICC FMC is an optional template whose complete or partial adoption remains up to the negotiating parties. If a contract’s force majeure clause is non-exhaustive and fails to plainly list conflicts or export bans as unforeseeable events, then the contracting supplier will have to look elsewhere in international contract law to prove the principle of unforeseeability.

The Principle of Foreseeability 

The test of foreseeability is that of reasonable foreseeability — in Mert Elcin’s words, “whether a normal person, placed in the same situation, could have foreseen it without either undue optimism or undue pessimism.” According to Christoph Brunner, the test is “not very straightforward and depends on the evaluation of specific circumstances” on a case-by-case basis.

In other words, the assessment of reasonable foreseeability is circumstance-dependent, requiring an assessment of the facts on the ground. Non-exhaustive force majeure clauses will fail to protect parties where resource nationalism and conflict are perceived by international tribunals as so “normal” as to be reasonably foreseeable within the parties’ political environment. 

This is a major consideration. If international tribunals find that embargo or conflict are “normal” in the region where business operations were envisioned, then in future some force majeure clauses may fail to protect commodity suppliers like those operating in the DRC. 

With that said, let’s return to the factual environment of the force majeure to factually assess the business and political environment of the DRC.

PHOTO: Regions of the DRC, 10 January 2012, Perry-Castañeda Library Map Collection Democratic Republic of the Congo Maps on Wikimedia Commons

The Changing Factual Environment of the DRC

The DRC has demonstrated a continued willingness to limit cobalt exports. After it unfroze the export ban in December 2025 after 10 months, a quota system became its replacement. Although the ten-month freeze was argued by some to be a failure, DRC Finance Minister Doudou Fwamba reflected the government’s satisfaction with the measure and stated that during the pause, “cobalt prices rose from $22,000 (AU$31,000) per tonne to $54,000 to $55,000 (AU$76,300 to AU$77,700)”, achieving the government’s original aim of ensuring national sovereignty over raw materials and preventing further fiscal revenue losses. 

The DRC’s new quota system, aimed at regulating a critical mineral in the global energy transition, has already been called an “audacious bet”, given it may be prone to corruption and the DRC may lack the administrative means to enforce a ceiling less than half of what was shipped in 2024. There is the additional risk that manufacturers may transition to EV batteries that don’t require cobalt. Even though great powers aim to leverage their influence to ensure access to the critical mineral, DRC President Félix Tshisekedi has threatened to exclude exporters disobeying the new quota system. All this evidence of resource nationalism points toward a political environment strongly amenable to sudden changes in export regulations.

M23 Armed Conflict

Almost all force majeure clauses list conflict as an automatically applicable event, yet in other instances when asked for their assessment, international tribunals have held past conflicts as foreseeable. For example, the closing of the Suez Canal from 1956–1957 during the Second Arab-Israeli War was held in some cases to have been foreseeable, despite this being an unplanned, war-time decision by the Egyptian government.

Civil conflict has brewed in the Eastern DRC for decades. While there are over 120 militias and armed groups operating in the area, le mouvement du Mars 23 (M23) has seen the most success in recent years. It is this success that motivated the DRC’s export ban of all minerals from North and South Kivu: to hamper the rebel group’s funding. 

PHOTO: M23 Rebel Outside of Bunagana, 7 February 2013, Nicolas Pinault on Wikimedia Commons

Assessing M23’s Threat to Resource Extraction

Whether the armed conflict swelling in the Eastern DRC changes the contractual allocation of risk depends on whether current facts on the ground create foreseeable impediments to future exports. With critical resources hanging in the balance, how international tribunals allocate risk in this conflict will hit both producers’ and consumers’ bottom line.  

Despite the threat M23 — part of a broader political coalition called the Alliance Fleuve Congo — may pose to resource extraction across the DRC, M23 claims it is ostensibly not a resource war; thus not a threat to resources. Spokesmen of M23, a Tutsi-led organisation, repeatedly say their motivation is to protect Congolese Tutsis, allegedly suffering discrimination and poor treatment in the DRC for their ethnic ties to the Tutsi population in Rwanda. According to M23 president Bertrand Bisimwa, the pre-emptive prevention of the genocide of the Congolese Tutsi populations is foremost: 

“Are we supposed to wait until they finish for us to speak of genocide? In Kinshasa, we have seen Congolese from other communities, with machetes, searching for Rwandaphones. We do not wait for the extermination to end to speak about genocide.” 

Ethnic loyalties are indeed an inescapable motivation of the conflict. The Tutsi population that forms the majority of M23 were the infamous targets of the 1994 Rwandan genocide. Of the 140 civilians M23 troops massacred across 14 villages in July 2025, a majority were Hutus. It was an extremist Hutu government that led the Rwandan genocide against the Tutsi, some of whose perpetrators founded a majority-Hutu rebel group, les forces démocratiques de libération du Rwanda (FDLR), operating near the aforementioned village massacres. In light of the DRC’s administrative and military weakness, these flaming ethnic tensions appear to be unresolvable issues that will continue for the foreseeable future.

UN reports find Rwanda has been backing M23 in the conflict — support recently admitted, to an extent, by Kigali in a Rwandan US embassy document calling its involvement “security coordination”. Rwanda and Uganda — who the UN reports also accused of aiding the M23 rebels — have been “facilitating the transit and marketing of minerals from areas under the control of armed groups”, according to the Louvain Cooperation. Despite M23’s claims to the contrary, resource extraction is an inextricable element of this conflict, and neighbouring countries appear committed to Congolese resource exploitation.

Unsuccessful attempts have been made to resolve the conflict. The Rwanda-DRC peace agreement signed in Washington DC on 4 December 2025 is one attempt that has proven ineffective. The “peace deal” was merely an endorsement of an agreement signed in June 2025, neither of which M23 recognises, being a non-signatory to both. Within a week of the December signing, M23 captured the strategic town of Uvira in South Kivu. The Trump administration has already recognised the accords are flailing, organising on the 16^th March for key leaders from the two countries to come back to Washington DC. A “nonbinding peace framework roadmap agreement” has been signed in Doha between the DRC and M23 on 15 November 2025, however continued military activities on the part of both demonstrates the signing is at best a beginning step, and at worst, diplomatic noise. 

Although the conflict against M23 is distanced from the DRC’s copper-cobalt mining operations elsewhere in the country, conflict is not unimaginable in cobalt-rich Katanga. Kisangani airport, 400 kilometres from M23’s stronghold in Walikale, has been repeatedly struck by M23 drones. Long-range operations by the rebel group are becoming less and less inconceivable. This growing political instability in the Eastern DRC might diminish investor confidence, and is a factual element that would be considered by a tribunal assessing the foreseeability of conflict interrupting trade.

Ramifications for Global Commerce

Foreseeability as a general principle remains very difficult to apply. As discussed, previous cases have held armed conflicts to have been reasonably foreseeable at the time of contract formation. On the other hand, a 70% increase in the price of steel due to the Global Financial Crisis was held in 2009 to have met the threshold of unforeseen, changed economic circumstances.

If resource conflict and resource nationalism become publicly recognised “normal” phenomena, then international contractors relying on continued exports will be exposing themselves to greater risk.

In regions like the resource-rich Great Lakes region — containing the Eastern DRC, Rwanda and Uganda — embargoes and civil conflict may reach such a level of public notoriety that suppliers remain liable for sudden export controls. In this scenario, international contract law would be discouraging commodity suppliers from contracting in high-risk areas, magnifying global commodity supply restrictions beyond the original effects of embargo or civil conflict. 

Alternatively, if force majeure clauses continue to cover embargoes and conflicts, a different form of tension will manifest itself in contractual negotiations. High-risk suppliers will need to give more or expect less to encourage hesitant purchasers to accept the risk that, in the case of failure to perform, they probably cannot recuperate their losses. Purchasers may flat-out refuse to accept embargoes as a force majeure event or use it as a negotiating chip to gain other concessions. 

Increasing global instability will reinforce the importance of well-drafted force majeure clauses for both sides.

Looking Beyond the Page

Amid rising resource nationalism and conflict, the future of global commerce relies on one simple fact: contracts are not formed in a void; the force majeure clause’s legal interpretation is not limited to what’s on paper. As geopolitical ruptures accumulate, failure to appreciate changed political environments can result in financial disaster.