When War Is No Excuse

Why It Matters

The ruling clarifies risk allocation in construction contracts, influencing how firms manage supply‑chain disruptions and negotiate future force‑majeure provisions.

Key Takeaways

• FIDIC requires “prevented” performance, not just difficulty.
• Notice must be given within 14 days of event awareness.
• Alternative routes invalidate force majeure claims if performance remains possible.
• Courts scrutinize causation and critical path impact rigorously.
• Robust documentation and mitigation are essential for successful claims.

Pulse Analysis

The rise of geopolitical shocks—from the Russia‑Ukraine war to chokepoints like the Strait of Hormuz—has thrust force‑majeure clauses into the spotlight of construction contracts. Under the FIDIC 1999 and 2017 Red Books, a contractor can only invoke the provision when it is truly “prevented” from performing, not merely made more costly or inconvenient. This distinction raises the evidential bar: the party must prove that the event directly stopped performance, that the delay is critical to the project’s schedule, and that any extra costs fall within the contract’s enumerated categories such as war or riots.

A recent dispute over Black Sea shipping illustrates how tribunals dissect such claims. The contractor argued that naval mines blocked vessel routes, causing material shortages and schedule slippage. However, vessel‑tracking data showed that the disputed ship had already been delayed for commercial reasons and that alternative southern passages remained open. Because the contractor could have rerouted cargo, the “prevention” test was not satisfied, and the causal link between the mines and the claimed delay collapsed. The case underscores that modern logistics intelligence can quickly invalidate poorly substantiated force‑majeure arguments.

Practitioners can avoid costly rejections by adhering to a disciplined claim protocol. First, issue a formal notice within the contract‑specified 14‑day window, attaching contemporaneous logs that map the disruption to the critical path. Second, conduct a rigorous delay analysis that isolates the event’s impact from ordinary project variability. Third, document mitigation steps such as sourcing alternative suppliers or adjusting delivery schedules. By coupling precise evidence with proactive risk‑management, contractors not only improve their chances of securing extensions or cost recovery but also reinforce contractual goodwill, a vital asset in an increasingly volatile global market.