Do the Sanctions Against Qatar Qualify as Force Majeure?

Depending on where you are in the World, you may or may not be aware that certain political sanctions were recently imposed against Qatar by Bahrain, Egypt, Saudi Arabia and the United Arab Emirates. Diplomatic ties have been severed and an embargo on all land, air and sea connections between these countries and Qatar has been put in place.

Given the fact that Qatar is very busy constructing a number of projects in preparation for the FIFA World Cup in 2022, it’s unsurprising that we have had some requests for advice from contractors whose operations in Qatar have been affected by the sanctions and are who are looking for a means of claiming extensions of time and/or damages. Most of the queries are along the lines of: are claims eligible under the FIDIC provisions of force majeure?

My opinion on this is ‘no’ and I will explain my reasons, but as we will see later, there are also conflicting opinions being shared by others. Let’s first take a look at the reasons for my opinion.

Force Majeure as Defined by FIDIC

Sub-Clause 19.1 (Definition of Force Majeure) offers the following:

‘In this Clause, “Force Majeure” means an exceptional event or circumstance:

  • which is beyond a Party’s control,
  • which such Party could not reasonably have provided against before entering into the Contract,
  • which, having arisen, such Party could not reasonably have avoided or overcome, and
  • which is not substantially attributable to the other Party.

So far then, the sanctions against Qatar tick all the above boxes so maybe they should be considered as a Force Majeure event or circumstance? Before coming to a decision though, let’s have a look at the rest of the clause, which states:

Force Majeure may include, but is not limited to, exceptional events or circumstances of the kind listed below, so long as conditions (a) to (d) above are satisfied:

  • war, hostilities (whether war be declared or not), invasion, act of foreign enemies,
  • rebellion, terrorism, revolution, insurrection, military or usurped power, or civil war,
  • riot, commotion, disorder, strike or lockout by persons other than the Contractor’s Personnel and other employees of the Contractor and Sub­contractors,
  • munitions of war, explosive materials, ionising radiation or contamination by radio-activity, except as may be attributable to the Contractor’s use of such munitions, explosives, radiation or radio-activity, and
  • natural catastrophes such as earthquake, hurricane, typhoon or volcanic activity’.

Given the fact that ‘conditions (a) to (d) above are satisfied’ by the situation in question, this part of the clause provides further qualifications to these conditions in that ‘Force Majeure may include, but is not limited to, exceptional events or circumstances of the kind listed below’. The sanctions cannot in any way be considered to be of the kind listed, so in my view, this excludes them from being classed as a Force Majeure event on this basis.

We must consider however, that this provision allows that an event may include, but is not limited to’ the type of event listed. In my opinion, this directs us to consider similar events to those listed but since the sanctions cannot be regarded as being similar, this again prevents them qualifying as a Force Majeure event. Furthermore, I think that if the drafters of this clause didn’t intend to define Force Majeure as similar to the kind of events listed, then there would be no reason to list the kind of events here and the definition could have just remained as stated in the first part of the clause.

Differing Professional Opinions

I mentioned earlier that not everyone shares my opinion on this matter and an eminent law company published a recent article which considered that the sanctions do qualify as a force majeure event, solely on the basis of the first half of Sub-Clause 19.1 (Definition of Force Majeure). It’s always interesting to debate these things so I contacted the author, put forward my opinion and invited him to offer his interpretation of how the second part of the clause should be applied to the sanctions but unfortunately I did not receive a reply. (Note: If I do get a reply in future, I’ll update this blog post with their opinion so we can debate from both sides).

I guess this illustrates that two people, whose job it is to be knowledgeable about certain matters, can sometimes have two diametrically opposed opinions. I will therefore leave it to you to make up your own minds on whether the sanctions imposed on Qatar may be defined as force majeure.

Got any thoughts on this? Comment below. 

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