超越不可抗力：冲突何时真正“阻碍”合同，我的策略是什么，我应该问什么问题

When Does a Conflict Actually “Frustrate” a Contract,What Is My Strategy, and What Questions Should I Ask?” The Financial Times released an article todayheaded “Qatar warns war will force Gulfto stop energy exports within days”. In ourprevious bulletin, we examined the use of •A frustrating event cannot be self-induced– If theevent arises from a deliberate action or choice of one of theparties, that party cannot rely on the doctrine of frustration.A party cannot invoke frustration where the event making •Only three categories usually apply: –Impossibility–Illegality The development of these events – including Qatar’swarning – prompt a pressing question for commercial parties– particularly those operating in the Middle East: when dogeopolitical shocks move beyondforce majeureand actually The event must impact the core purpose of the contract;foreseeable or incremental risks do not typically meet the Frustration – The High Bar Under English •The effect is automatic discharge– Once frustrationoccurs, all future obligations fall away with no judicialdiscretion to amend the contract. This “all‑or‑nothing”consequence makes courts cautious. For example, if avessel under a time charter was part‑way through its Frustration is a common law doctrine that automaticallydischarges a contract for both parties when: •A supervening event occurs after formation •Neither party is at fault •Performance becomes impossible, illegal or fundamentallydifferent from what the parties originally agreed Key principles include: Conflict-driven Events – Do They Satisfy •Frustration is exceptional– Hardship, delay,inconvenience or increased cost are insufficient. Courtshave refused frustration where an alternative route was merely longer (e.g., the Suez closure – seeTsakiroglou &Co Ltd v. Noblee Thorl GmbH[1962] AC 93 (HL)) or wherelengthy delays did not change the nature of the bargain. For Physical Destruction or Unavailability of the Frustration may arise if war destroys or permanently removes In the current Iranian conflict, disruption has largely involvedairspace closures, shipping delays and market volatility, ratherthan the widescale destruction of essential facilities. Unlessa party can show that critical infrastructure (e.g. a port,refinery or project site) has been eliminated, frustration may •No clause may provide for the event– If the contractalready provides for how to deal with the supervening event(such as through demurrage or aforce majeureclause),courts are far more likely to apply the agreed mechanismthan allow the parties to walk away. Yet, even then, a be hard to prove. Nonetheless, given the recent warning that charterparty may still be found to have been terminatedfor other reasons. For example, inMSC MediterraneanShipping Company S.A. v. Cottonex Anstalt[2016] EWCA Moreover, while financial loss would not in itself cause acharter to be frustrated, case law suggests an exception to The exception applies where the cost of carrying out onlythose repairs necessary to let the ship finish the voyage,even if the repairs are temporary, would exceed the vessel’spost‑repair value, meaning that no reasonable owner wouldundertake them. In such circumstances, the situation istreated as equivalent to one where repair is physically an increased burden rather than a radical transformation ofthe contractual obligation. Therefore, a war or a widespreadstrike might frustrate a voyage charter, while the sameevents may have no impact on a time charter that allows for abroader trading range. Yet, there are circumstances in which This exception may not apply if the charter requires theowners to maintain hull insurance at a specified level, and therepair costs fall within the insured amount. In that scenario,the owners may not be able to argue that they could not Frustration-focused Strategies and Key Despite the commercial fallout from the US‑Israel‑Iranconflict, most disruptions are unlikely to meet the stringentEnglish law threshold for frustration. Nonetheless, asthe conflict evolves and potential sanctions or targeted Illegality Arising From Sanctions or Performance may become illegal if new sanctions,export controls or emergency governmental restrictionsprohibit contractual obligations. The courts recognise such In the meantime, businesses should consider the following •Is it reasonable for me to expect to rely onforce majeureorfrustration? The current disruptions we are seeing as a result of theIranian conflict, such as insurance withdrawals, higher freight –Depends–Investigate whether a supervening event trulychanges the nature of the obligation. Assess both the –Analyse the parties’ original risk allocation under thecontact and the foreseeability of the event by reference However, given the rapidly evolving dynamics, futureIran‑related sanctions could make certain contracts illegalto perform (for example, prohibiting supplies to specified –Exercise caution before alleging frustration, as a fail