Why force majeure analysis differs in the UAE and England during Middle East conflict challenges

These range from M&A and investment transactions to contracts for supply and procurement, transportation and logistics, energy and natural resources, finance and lending, amongst others.

Force majeure clauses may broadly impact any commercial contract that involves ongoing or future performance obligations, particularly where performance depends on the physical delivery of goods, workforce availability, supply chains, government regulation, and external infrastructure.

The current conflict and the resulting disruption around the Strait of Hormuz have created uncertainty for contracting parties. These developments are driving changes in market conditions, cost pressures, operational constraints and evolving risk affecting the ability of parties to perform their obligations as originally envisaged. In response, counterparties are reassessing their contractual positions, including whether performance can be delayed, varied or excused altogether.

Against this backdrop, disputes commonly arise where contracts were agreed before the outbreak of hostilities, in circumstances where commercial conditions were materially different and risks now affecting performance were not fully anticipated.

• Read more on what the Middle East conflict means for your business

The application of force majeure as a possible relief method differs by jurisdiction. In the UAE, there are variations between onshore and offshore jurisdictions, with offshore jurisdictions adopting an analysis more closely aligned to English law. This means that, while both English law and UAE onshore and offshore regimes require a high threshold for establishing relief, the application and interpretation of force majeure is approached in different ways.

Onshore UAE law

In the UAE, force majeure is recognised under the UAE’s Civil Code – specifically, Article 273. Under this legislation, there are strict court-developed tests to determine if a situation classifies as force majeure.

This test requires the invoking party to demonstrate that the event was external, beyond the parties’ control, unforeseeable at the time of contracting, unavoidable and has caused an objective impossibility of performance, rather than mere hardship.

Those criteria will be assessed by the UAE courts on an objective basis, which have historically set a consistently high threshold for establishing force majeure. However, greater clarity as to what constitutes foreseeability and causation is expected to emerge under the UAE’s new Civil Code, which comes into effect on 1 June 2026.

The impact of these carefully considered classifications can be seen in cases which have been considered in the UAE where force majeure has been a point of contest.

In 2024, one such case was considered by the Dubai Court of Cassation in relation to a dispute concerning the non‑shipment of two cargo containers, which had been intended for transportation from the UAE to Odessa. The shipment was disrupted by the conflict between Ukraine and Russia.

The claimant sought recovery of freight charges and damages, alleging that the defendants had breached their contractual obligations by failing to ship the goods as agreed, but the claim was dismissed by the courts after it was held that the war was unforeseeable at the time the contracts were agreed, beyond the control of the contracting parties, and rendered performance objectively impossible rather than merely more onerous.

The judgment was upheld by the Court of Cassation, illustrating that the UAE courts will also consider events occurring outside of their jurisdiction if they may impact contractual performance within the country.

While this judgment provides helpful guidance on how the UAE courts may approach force majeure in the context of geopolitical events, the application of these principles remains highly fact specific. Whether relief is available will depend on the circumstances of each case, including the nature of the contractual obligations and the extent to which performance has been rendered objectively impossible.

English law

In English law, however, force majeure is not a statutory consideration and exists purely as a contractual concept.

This means that contractual challenges will turn on an interpretation of how the relevant clause is worded – including whether or not performance has been actually ‘prevented’ or if it has merely been delayed.

The onus is on the party invoking force majeure to show clear causation, a lack of alternatives and that there had been clear compliance with contractual requirements of notice and mitigation – and as a result, these challenges can often fail if it cannot be proven that performance was impossible.

The English law approach is illustrated in a 2023 decision by the High Court, which concerned a ferry operator’s failure to meet minimum volume commitments during 2021 amid Covid‑19 disruption and post‑Brexit trading conditions.

Although Brexit was not expressly listed as a force majeure event, the clause extended to “circumstances beyond a party’s reasonable control”, and the court proceeded on the assumption that Brexit could fall within that wording.

However, relief was ultimately denied because the clause required the force majeure event to have affected the claimant and to have causally prevented the defendant’s performance, which the defendant failed to establish on the evidence. This case demonstrates that, even where a force majeure event is captured by the contract, it does not entitle the parties to relief unless causation and performance impossibility are proven.

Causation, and all other elements required to establish force majeure, were established in a 2022 case, in which the English High Court upheld the termination of a media rights agreement following the postponement of professional rugby competitions caused by the Covid‑19 pandemic.

The contract expressly included “epidemic” within the definition of a force majeure event and allowed termination where performance was prevented, hindered or delayed for a continuous period. The court held that the pandemic fell squarely within the contractual definition and that the relevant termination threshold had been met.

This underlines the difference between how the two courts approach the issue – with the English courts adopting a contractual interpretation approach, focusing on analysis of the clauses in question, so that the application of force majeure turned on purely contractual performance. By contrast, Dubai jurisprudence places greater emphasis on the nature of the event itself, assessing whether it was unforeseeable at the time of contracting and beyond the parties’ control, and applies a statutory test of objective impossibility.

Offshore jurisdictions

A further distinction arises when analysing the application of force majeure in the UAE, due to the separate offshore courts for the Dubai International Financial Centre (DIFC) and the Abu Dhabi Global Markets (ADGM), which operate under their own legal frameworks.

In the ADGM, force majeure remains a purely common law mechanism with no statutory provision, meaning its operation is determined entirely through contractual wording, in line with the English law principles described above.

Meanwhile, although the DIFC is also a common law jurisdiction, it does feature a statutory force majeure provision in Article 82 of the DIFC Contract Law. This provides non‑performance is excused only where an unforeseeable impediment beyond the party’s control could not reasonably have been avoided or overcome and where timely notice was given.

Importantly, however, contractual force majeure clauses take precedence and Article 82 operates only as a fallback where the contract is silent or incomplete. This means that parties retain significant autonomy to limit, expand, or exclude force majeure protection. The DIFC Courts illustrated this clearly in a 2017 case, where the relevant clause expressly excluded “a mere obligation to pay” from force majeure protection.

As a result, even if a force majeure event had occurred, the defendant could not rely on it to excuse non‑payment, and the claimant remained entitled to terminate the contract under statutory and contractual rights.

Practical implications

Force majeure is often viewed as a safety net in times of crisis, but both English and UAE onshore and offshore courts continue to apply it sparingly, and within differing circumstances.

Under English law, force majeure is entirely contractual and heavily dependent on precise drafting, with courts reluctant to excuse performance where alternatives, even costly ones, remain available. In contrast, UAE law recognises force majeure as a statutory concept but sets an equally demanding bar: performance must be rendered objectively impossible, not merely more onerous.

• A similar discipline is evident in the UAE’s offshore courts. In the ADGM, force majeure remains a purely contractual mechanism aligned with English common law principles, while in the DIFC a statutory framework exists but operates largely as a fallback where contracts are silent.

What emerges from how both English and UAE courts have treated the issue is a consistent message that successfully invoking force majeure is far from straightforward. For those who find themselves in a dispute involving unforeseen events, it is important to approach force majeure as a risk management tool, including by careful commercial drafting of contractual provisions, rather than a default remedy after such an event has arisen.

Contracts should be reviewed carefully, notice obligations strictly observed, and mitigation steps taken and actively documented. Businesses operating across different jurisdictions must also understand that the same disruptive event may produce vastly different legal outcomes depending on the governing law of the contract.

Co-written by Reem Sharif of Pinsent Masons