Force Majeure in the Middle East: Legal Risks and Practical Realities

Force majeure is not a statutory concept but a contractual one under English law. It needs to be drafted carefully to cover events like the current Middle East conflict. To rely on force majeure, affected parties must establish that the event was beyond their control, was not foreseeable at the time of signing the agreement, and directly prevented performance, while mitigating any losses.

The escalation of the Middle East conflict, especially since 28 February 2026, highlights the importance of carefully drafted force majeure clauses, particularly in energy and infrastructure projects with complex supply chains.

Force Majeure under English Law

Force majeure clauses excuse contractual performance when events beyond a party’s control prevent fulfilment of obligations. Under English law, unlike many civil law systems, force majeure has no independent legal existence, it operates solely through express contractual terms. Courts interpret such clauses in a strict and narrow manner, requiring the triggering event to be both unforeseeable and outside the affected party’s reasonable control. The clause must also clearly cover the event in question and ambiguity is often construed against the party seeking relief.

Key considerations for claiming Force Majeure

A party seeking to rely on a force majeure clause must first establish that the conflict or related events are within the scope of the contractual clause.

Foreseeability is also a critical factor. Where the relevant risk was ongoing or reasonably foreseeable at the time the contract was concluded, reliance on Force Majeure may be unsuccessful on the basis that the risk was effectively assumed.

In addition, the affected party must show that it has taken reasonable steps to mitigate or overcome the impact of the event. Strict compliance with contractual notice provisions is equally essential. Failure to give timely notice, or to respond promptly to a counterparty’s notice, may prejudice a party’s position and, in some cases, be interpreted as acceptance of the claim. A passive “wait and see” approach is therefore not advisable.

Impact on Energy Sector

Disruptions in the Strait of Hormuz have led to vessel rerouting, delays, and increased operational risk. To support force majeure claims, parties should carefully document safety to crew and vessels, availability, or lack thereof, of alternative routes, and cost and time implications of rerouting. Many maritime contracts incorporate standardised BIMCO war risk clauses, which may permit shipowners to decline entry into hazardous zones and determine how additional costs arising from route deviations or elevated insurance premiums are to be allocated. The precise wording of these clauses frequently becomes a decisive factor in dispute resolution.

Key state-owned companies, such as Kuwait Petroleum Corporation and Bahrain’s Bapco Energies, have invoked force majeure clauses, stalling shipments and lowering output following attacks on infrastructure and threats to shipping in the Strait of Hormuz.  Most recently, QatarEnergy declared force majeure on some of its long-term LNG supply contracts amid production and supply disruptions caused by the war between the USA, Israel, and Iran.

Alternatives to Force Majeure

If a contract does not have a Force Majeure clause, the doctrine of frustration might apply under English Law. Frustration allows for the agreement to be discharged, but only if performance becomes impossible, illegal, or fundamentally different from what was envisaged. The threshold for this is much higher than that of temporary disruption and/or inability to perform. The courts have applied this doctrine narrowly. In Tsakiroglou v Noblee Thorl [1962], the House of Lords held that a contract was not frustrated by the closure of the Suez Canal even though the only alternative route substantially increased costs, performance remained possible and the contract was not discharged. Similarly, in The Sea Angel [2007], the Court of Appeal reaffirmed that frustration is a doctrine of last resort, applicable only where the change in circumstances is so fundamental that it would be unjust to hold the parties to their contract. Increased costs or operational difficulties alone will not suffice.

Companies should carefully document all disruptions and their mitigation efforts to substantiate future legal claims.

Lessons for the future

In light of recent disruptions, companies should take a proactive and structured approach to risk management by conducting a thorough review of their supply chains and sub-contractor arrangements to identify counterparties exposed to similar risks. Early engagement with these parties can help anticipate and mitigate potential disruptions before they escalate into disputes. It is equally important to ensure alignment and consistency of provisions across contractual frameworks, as gaps between main contracts and subcontracts may leave parties exposed. Attention should be given to strengthening the drafting of force majeure clauses to clearly define triggering events, establish the required causal link between the event and non-performance, and set out detailed procedural requirements, including notice obligations and evidentiary standards. Finally, meticulous record-keeping is essential; maintaining comprehensive documentation of disruptions, communications, and mitigation efforts will be critical in substantiating any future claims or defending against challenges.

Post-crisis legal phase

It is important to recognise that the resumption of navigation through the Strait of Hormuz following a period of tension does not bring the legal consequences of the crisis to an end. Rather, it may mark the beginning of a new phase of complex contractual disputes concerning delayed cargo deliveries, altered routes, and increased insurance and transportation costs. The manner in which such disputes are resolved will depend heavily on contractual wording, applicable law, and the chosen dispute resolution forum.