免责但不可免除：协调不可抗力救济与持续减轻责任

Reconciling Force Majeure Relief With theOngoing DutyTo Mitigate Asia Pacific – April 2026 Over the last six weeks, there have been anincreasing number of declarations offorcemajeurein the global LNG market reported,both under (i) single source/single trainSPAs with Middle Eastern sellers, such asQatarEnergy, following missile attacks at theRas Laffan facilities; (ii) portfolio agreementsfrom portfolio LNG sellers with offtakecapacity or supply arrangements in theMiddle East; and (iii) short-term or tradingtransactions. The primary consideration is the wording of the agreementand the applicable governing law to determine the legalmeaning of the duty. For example, it is common to see a“reasonable endeavours” obligation attached to the duty tomitigate inforce majeureprovisions. This obligation importsa standard under English law requiring that a party pursue areasonable course of action, and one which does not requireit to subvert its own commercial interests in satisfyingthe duty. This is a lesser threshold than, for example,“best endeavours”, which, depending on the context, mayinstruct the claiming party to use its best efforts to satisfythe obligation and may require some sacrifice of its owncommercial interests. Against that backdrop, courts and tribunals typically assessmitigation efforts by examining the steps and actions beingtaken by the party claimingforce majeureacross a variety ofmeasures, in an effort to determine when those measuresbecome commercially disproportionate to the duty. In our previous articles, we highlighted the importance ofcarefully scrutinising the contents of aforce majeurenoticeto ascertain its validity and compliance with the relevantagreement and verifiable facts. In this article, we delve deeperinto the two questions provoking much debate in the marketright now: An important consideration may be whether the particularagreement is for supply from a single source or LNG train,or a portfolio arrangement, whereby the seller is entitledto supply LNG to the buyer from a variety of sources listedin the relevant agreement, provided it meets the qualityspecifications. Based on which contractual framework applies,there may be important differences in the scope and effectof the duty to mitigate and whether an obligation exists toreplace the shortfall volumes. •What is the scope and extent of the duty to mitigate?•What are legal and commercial options for traders inmanaging the supply shortfalls on the trading desk? We address each in turn. The Duty To Mitigate In a single supply source/single train contract, if the namedfacility/train goes offline or otherwise becomes unavailable forreasons that are outside of the control of the party claimingforce majeurerelief, a seller’s mitigation efforts may involve,for example: At the outset, it bears repeating thatforce majeureis acreature of contract and, therefore, the exact scope of theparties’ rights and obligations will depend on the specificwording of theforce majeureprovision, interpreted inaccordance with the applicable governing law. The followingdiscussion is therefore cast in general terms. •Evaluating the cause and scale of the issue and thepotential impact on its performance •Promptly undertaking an appraisal of the repairs required,seeking replacement parts (as applicable) and developing aremedial timeline for the works•Mobilising alternative systems, where feasible•Performing safe and potentially temporary fixes to allow forpartial operations to resume, if possible•Assessing and allocating any available supplies among itsbuyer pool on an equitable basis A party claimingforce majeuremay be required to complywith an endeavours obligation – be it “reasonable”, “allreasonable”, “best” or otherwise – to (i) resume normalperformance; (ii) bring the event to an end (often acting asa “reasonable and prudent operator”); and (iii) mitigate theeffects of theforce majeure. In an LNG context, this raisesquestions as to the extent of the mitigation duty and whethera seller claimingforce majeuremust procure replacementsupplies in order to comply with its duty to mitigate theforcemajeure. In a portfolio arrangement, a seller may find it morechallenging to claimforce majeurein circumstances where,for example, theforce majeureeventimpacts only one supplysource, leaving other contractually nominated load portswithin its portfolio available. Ultimately, whether a seller must procure replacementsupplies – for example, in the spot or short-term market, orfrom its wider portfolio – depends on a number of factors. However, there are still a number of other considerations. Forexample, in contracts which provide for both (i) a particularsupply source(s), but also (ii) the seller having the ability tosupply from other sources provided that the LNG meetsthe prescribed quality specifications, the seller may takeinto account various factors when considering whether it iscommercially proportionate to procure replacement supplies.Such factors ma