重大供应链冲击对货物制造、分销和销售合同的影响

Executive Summary Yet another shock to the supply chain has emerged from the US/Israel/Iran war, which has quickly expanded to include Iranianattacks on Bahrain, Cyprus, Jordan, Kuwait, Oman, Qatar, Saudi Arabia and the UAE. Linked to all of this is the impact on the ability of all affected countries to export oil via the Strait of Hormuz (currently closed),there are also expected impacts on all maritime trade that flows through the Red Sea and the Suez Canal, as well as all air cargothat flies across the Middle East and via hub airports in the Middle East. As with many other supply chain shocks of recent years, the speed and scale of the escalating situation across the Middle East havetaken many businesses by surprise, although tensions had been rising. This is not dissimilar to other major events (whether they benatural disasters affecting major industrialised countries, Brexit, COVID-19, the Russia/Ukraine conflict or the global cost of energycrisis, which have all had and, in some instances, continue to have major adverse impacts on the ability of companies to source,manufacture and sell raw materials, commodities, components, finished goods and services. The occurrence of these events has placed businesses under extreme pressure for a considerable period of time as the eventscontinue for months or years, rather than being a one-off occurrence. These events are often compounded by other issuesrelating to tariffs, energy prices and changes in tax, employment and other policies of national governments. The impact of all “unexpected” events is that they must be managed simultaneously by businesses and, as such, the effectsof these events may be difficult to separate from other supply chain shocks. For example, the impact of digitisation, artificialintelligence and “as-a-service” business models is also having a dramatic effect on the nature of what many companiesproduce, as well as how companies bring the goods that they produce to market. As a result, existing supply chain contracts may require renegotiation if businesses are to remain viable, while greater care willbe needed to ensure that new contracts provide appropriate protection when dealing with fast-changing conditions. This note considers some of the key contractual issues that businesses (particularly those involved in the manufacture,distribution and sale of products) need to consider as they assess their critical needs, vulnerabilities and protections alongsidetheir ability to mitigate risks, both under existing contracts and as they develop new contractual arrangements. In addition, many of the practical tips apply equally well to businesses that may need to look to renegotiate failing contracts,particularly where one party finds itself under financial pressure, either generally or as a result of an existing contract that iseither onerous, or that does not provide adequate protection as regards supply chain issues. What Are the Immediate Contractual Issues Following a Supply Chain Shock? •In recent years, several major events have arisen without warning. When dealing with any such shocks, businesses will needto consider the following points: •Which contracts and supply chains are the most affected, either directly or indirectly?•What is the impact of the shock on all affected contracts, whether directly or indirectly, i.e. if a supply chain partner cannotdeliver a component, then a company further up the supply chain may not be able to produce those products that incorporatethat component?•Is the shock a single event (such as a tsunami), or is the event likely to continue for a considerable time (such as a war) withmuch wider and expanding implications regarding those who are affected?•What rights, remedies and reliefs (such asforce majeure, frustration, relief events and/or material adverse changes) may ariseas a result of the supply chain shock?•How should the business respond to notices that it receives from suppliers and customers who may seek to avoid or cancelcontracts following a supply chain shock, particularly where the underlying contracts are significant to the business?•Are such requests reasonable, or should the affected party have been able to take steps to mitigate the issue?•Which contracts need to be renegotiated or terminated?•What is the scope for reducing volumes or suspending/cancelling purchases under contracts with suppliers, and are there anyrights to suspend payments? •Are there any notice requirements that have been, or may be, triggered, i.e. ifforce majeurerights are to be claimed, suchrights usually must be exercised within a few days of the event arising? •Are there alternative means to perform contractual obligations, or proactive steps that can be taken in relation to anticipatingand/or reacting to the potential future effects of the supply chain shock?•Is any insurance coverage available, such as forbusiness interruption?•What are the disaster recovery procedures in anyaffected contracts?•Is there