Briefing

Force majeure under UAE law and English law: A comparative analysis

For commodities traders, force majeure has been an area of focus in recent times as the commodities sector has faced unprecedented disruptions, in particular as a result of the Covid-19 pandemic, the war in Ukraine and the conflict in the Middle East. The doctrine of force majeure serves an important commercial function by addressing the consequences of extraordinary events that prevent contractual performance and allocating the risk of such events between contracting parties.

Despite the widespread use of the term “force majeure” in international commerce, the concept operates differently under UAE law and English law. Under UAE law, force majeure is recognised as a matter of law and may apply even in the absence of an express contractual provision. By contrast, English law does not recognise any free-standing doctrine of force majeure. Instead, parties seeking relief must rely on the wording of a contractual force majeure clause or, failing that, the more limited common law doctrine of frustration.

This article examines the key principles governing force majeure under both legal systems and highlights the principal similarities and divergences.

The nature of force majeure

At its core, force majeure concerns the effect of an external event which is beyond the control of the contracting parties and which prevents or materially interferes with contractual performance.

The central question is whether the event excuses performance and, if so, what consequences follow for the parties’ contractual obligations.

Force majeure under UAE law

A distinguishing feature of UAE law is that force majeure exists independently of the parties’ contract. With that said, UAE law does recognise freedom of contract and UAE courts will generally give effect to the wording of any force majeure clause contained in a contract.

UAE law recognises that an exceptional event beyond the parties’ control may affect contractual obligations as a matter of law.

The concept is generally associated with an event that is external, unforeseeable, unavoidable and incapable of being prevented through reasonable measures. The event must generally render performance impossible, rather than merely more expensive or commercially unattractive.

Accordingly, where performance is prevented because of a force majeure event, the affected party may be relieved from liability for non-performance.

Where a force majeure event renders performance entirely impossible, this may result in the contract being terminated by operation of law.

Where impossibility is only partial, however, the position is more nuanced. The obligation may be extinguished only to the extent that performance has become impossible. The remainder of the contract may continue to operate.

This distinction between total and partial impossibility is particularly important in practice. Many commercial disruptions do not render every aspect of a contract impossible. Instead, some contractual elements may remain capable of performance while others cannot be performed.

UAE law also recognises the principle of reciprocal obligations. In broad terms, a party may be entitled to withhold performance where the other party has failed to perform its corresponding obligations. This principle frequently arises in force majeure disputes, where one party argues that it should not be required to continue paying for services which are no longer being provided.

Force majeure under English law

English law adopts a different approach.

There is no free-standing doctrine of force majeure under English law. A party can only obtain force majeure relief if the contract contains an express force majeure clause.

As a result, the outcome of any dispute will depend primarily upon the precise wording used by the parties.

Typically, the party seeking to rely on the clause must generally demonstrate the following:

That the relevant event falls within the scope of the clause.
That the event has caused the inability to perform.
That the event was beyond its reasonable control.
There were no reasonable measures available to prevent the event or mitigate its effects.

Any procedural requirements, such as notice provisions, must also be satisfied.

Common provisions include relief from liability and rights of termination after a specified period.

The English courts interpret force majeure provisions strictly and disputes frequently arise where one party challenges the other’s right to rely on a force majeure provision because of a failure to adhere strictly to its terms.

The effect of a force majeure event under English law will therefore depend heavily upon the language used in the contractual clause. Consequently, small differences in drafting can produce markedly different legal outcomes.

For example, some clauses require performance to be completely “prevented” before a party can seek relief. Other clauses will be triggered where performance is “hindered”, “impeded” or “delayed”. Such wording may provide broader protection because the affected party need not demonstrate complete or permanent impossibility of performance. However, it may give rise to only a temporary suspension of contractual obligations.

Conclusion

Although the phrase “force majeure” is used in both jurisdictions, UAE law and English law approach the subject differently. UAE law treats force majeure as a legal doctrine capable of affecting contractual obligations independently of the parties’ express agreement. English law, on the other hand, regards force majeure exclusively as a matter of contractual allocation of risk.

For parties operating in the Middle East, particularly in sectors such as commodities, shipping, energy and infrastructure, these distinctions are far from academic. They may determine whether a contract is suspended, terminated, adjusted, or remains fully enforceable despite a major disruptive event.

The practical lesson is straightforward: parties should not assume that a force majeure clause will have the same effect across jurisdictions. Careful drafting and a clear understanding of the governing law remain essential to managing force majeure risk in international commerce.