Written by: Garima Bothra,
In an increasingly interconnected global economy, commercial relationships are routinely exposed to large-scale disruptive events, ranging from geopolitical tensions and armed conflicts to economic sanctions, regulatory interventions, pandemics and supply chain breakdowns. The ongoing geopolitical tensions and armed conflicts in the Middle East have raised a recurring contractual question: can such conflicts be invoked as a force majeure event to excuse contractual non-performance? The answer is nuanced and depends on both contractual drafting and the factual matrix.
Contractual Interpretation is Determinative:
At its core, force majeure is a creature of contract. Unlike statutory doctrines, its scope is defined entirely by the language agreed between the parties. Consequently, the first and most decisive inquiry is whether the relevant clause is sufficiently broad to capture the event in question. Clauses that expressly include events such as “war”, “acts of government”, “disruptions to transportation and supply chains”, among others are more likely to accommodate modern forms of disruption.
Existence of Force Majeure Event vs. Impact on Performance:
It is also important to note that even where an event falls within the scope of the clause, its mere occurrence does not automatically excuse performance. The invoking party must establish a direct causal nexus between the event and its inability to perform contractual obligations. The threshold is typically high: performance must be rendered impossible or materially hindered, rather than merely more expensive or commercially inconvenient. This principle was upheld by the Supreme Court of India in Energy Watchdog v. Central Electricity Regulatory Authority.
The nature of the contractual obligation also plays a crucial role. Contracts involving physical performance, such as supply, construction, or logistics, are more susceptible to disruption from external events. By contrast, service-based or technology-driven contracts may still be capable of performance through alternative means. In such cases, the availability of reasonable alternatives can weaken a force majeure claim.
Drafting takeaways:
A significant and often underappreciated risk is that of unreasonable or opportunistic invocation, particularly where force majeure clauses are poorly drafted. Overly broad or vague clauses can embolden parties to invoke force majeure even where performance remains feasible, albeit less advantageous. For instance, a party may rely on general geopolitical instability or regulatory uncertainty without demonstrating any tangible impact on its specific obligations.
A poorly drafted force majeure exacerbates this risk in multiple ways. First, the absence of clearly defined triggering events creates ambiguity as to the clause’s scope. Second, the lack of objective thresholds, such as whether performance must be “prevented” or merely “hindered”, allows for subjective interpretation. Third, inadequate procedural requirements, including notice and mitigation obligations, can further complicate enforcement.
From a drafting perspective, precision is critical. Parties should aim to include:
- Specific categories of disruptive events: Force majeure clauses should expressly identify the types of events that may trigger relief, such as war, sanctions, acts of government, supply chain disruptions, or transportation blockages. Specificity reduces interpretational ambiguity and limits the scope for dispute. In the absence of clearly enumerated events, parties may be forced to rely on broad residual language, which courts may construe narrowly.
- Define the standard of impact: The clause should expressly stipulate the threshold at which a force majeure event may be invoked. It should clearly define whether performance must be “prevented” (i.e., rendered impossible) or whether a lower threshold such as “materially hindered or substantially impaired” would suffice. Where a broader standard is intended, the clause should also clarify the degree of impairment required and, where appropriate, exclude mere economic hardship or increased cost.
- Procedural safeguards: This typically includes prompt written notice of the force majeure event, periodic updates on its impact, and a duty to take reasonable steps to mitigate the effects and resume performance at the earliest opportunity. These safeguards serve a dual purpose: they ensure transparency and accountability, and they prevent misuse of the clause as a blanket excuse for non-performance without demonstrable effort to overcome the disruption.
Conclusion:
The ongoing Middle East conflict may, in appropriate circumstances, constitute a force majeure event; however, its invocation is neither automatic nor lightly sustained. It requires a clear alignment between the contractual language, the nature of the disruption, and its direct impact on the affected party’s ability to perform. Mere existence of geopolitical instability or regional conflict, without demonstrable interference with contractual obligations, is unlikely to meet the requisite threshold.
In this context, force majeure should not be viewed as a blanket escape mechanism, but as a carefully calibrated risk allocation tool. Its effectiveness ultimately depends on how clearly the parties have anticipated potential disruptions and defined the conditions under which relief may be granted. In an environment marked by recurring global uncertainty, clarity, specificity and foresight in drafting are indispensable to preserving contractual certainty and commercial stability.
