Does war automatically qualify as force majeure?

No. Under English law there is no standalone force majeure doctrine, so war excuses performance only where the clause’s wording captures it, construed strictly, and the affected party proves the event prevented or hindered the specific obligation. Ukrainian law treats war as force majeure in principle, but the party must still show it caused the particular non-performance and comply with notice and mitigation requirements. Certification and the contractual definition drive the outcome.

Is a UCCI certificate mandatory in every Ukrainian dispute?

No. A contract-specific certificate can be valuable evidence, but Supreme Court case law treats it as neither conclusive nor the only permitted proof. The contract may nevertheless make timely certification a condition with defined consequences.

Can force majeure excuse a payment obligation?

Only in limited circumstances. English law usually requires the clause to reach the payment problem, while Article 625 of the Ukrainian Civil Code makes monetary liability particularly difficult to avoid. Sanctions, illegality, and banking restrictions require a fact-specific analysis.

Does reasonable endeavours require accepting a workaround?

Ordinarily no. Under RTI v MUR [2024] UKSC 18, an English-law endeavours clause does not require acceptance of non-contractual performance absent clear words to that effect, though the affected party must still take reasonable steps directed at performing as agreed. Ukrainian law imposes an analogous good-faith duty to mitigate. Express wording specifying acceptable alternatives displaces the default.

What should a contractor prove in a FIDIC claim?

The contractor should prove a qualifying event, timely notice, the event’s effect on the relevant activity and critical path, mitigation, and the contractual basis for time, cost, or termination. The governing law and Particular Conditions may add or change requirements.

Force Majeure Under English and Ukrainian Law

Introduction

A practical guide for businesses and construction projects

War, sanctions, pandemics, and infrastructure failures do not automatically excuse contractual performance under English or Ukrainian law. The result turns on the governing law, the clause, notice requirements, and evidence that the event caused the specific breach. Businesses should test these points when drafting and again as soon as disruption occurs.

English Law Makes the Contract Decisive

English law has no free-standing doctrine of force majeure. If the contract contains no force majeure clause, war, flood, sanctions, or government action does not create a general right to suspend performance. The clause is therefore the source and limit of any contractual relief. Metropolitan Water Board v Dick, Kerr & Co Ltd [1918] AC 119 (HL) remains an early warning that broad language will still be construed in its contractual setting.

A party invoking the clause will ordinarily need to establish that the event falls within its wording, that it caused the relevant non-performance, and that contractual conditions such as notice and mitigation were satisfied. The clause should also say what follows: suspension, an extension of time, relief from damages, cost recovery, or termination after a defined period. Those consequences are not interchangeable.

Causation Under Classic Maritime

In Classic Maritime Inc v Limbungan Makmur Sdn Bhd & Anor [2019] EWCA Civ 1102, the Court of Appeal considered a charterer’s failure to ship iron ore after the Fundao dam disaster. The event fell within the clause, but the charterer would not have performed even if the dam had not failed. On the wording before the court, the charterer had to satisfy a but-for causation test and could not do so. The case matters where delay or non-performance has several causes, including the affected party’s own earlier default.

Reasonable Endeavours Under RTI v MUR

RTI Ltd v MUR Shipping BV [2024] UKSC 18 concerned U.S. sanctions that impeded contractual payments in U.S. dollars. The counterparty offered to pay in euros and cover the conversion cost. The Supreme Court held that, without clear wording, a reasonable-endeavours proviso did not require the affected party to accept non-contractual performance. Reasonable endeavours are directed to maintaining performance of the bargain, not replacing it. Parties can draft a different rule, but they should do so expressly.

Frustration Is a Narrow Fallback

If no clause applies, frustration may discharge an English-law contract when a supervening event makes performance impossible, illegal, or radically different from what the parties agreed. Taylor v Caldwell [1863] EWHC QB J1, (1863) 3 B & S 826 is the classic impossibility case. Davis Contractors Ltd v Fareham UDC [1956] AC 696, [1956] UKHL 3 shows the limit: serious delay and greater expense did not make the construction contract fundamentally different. Canary Wharf (BP4) T1 Ltd & Ors v European Medicines Agency [2019] EWHC 335 (Ch) likewise rejected frustration of a 25-year lease after Brexit. The Law Reform (Frustrated Contracts) Act 1943 governs the financial consequences when frustration does apply.

Ukrainian Law Requires Proof Despite Statutory Protection

Article 617 of the Civil Code of Ukraine releases a party from liability for breach if it proves that the breach resulted from accident or force majeure. The provision expressly excludes lack of funds, absence of goods on the market, and a counterparty’s default. It therefore protects against an external impediment, not ordinary commercial difficulty. It also addresses liability for breach; it does not automatically extinguish the underlying obligation.

Article 652 provides a separate remedy for a material change of circumstances. If its cumulative conditions are met, a court may terminate the contract or, exceptionally, amend it. The Supreme Court distinguished this hardship mechanism from force majeure in case No. 910/15264/21 of 31 August 2022. Article 625 imposes a further constraint by preventing a debtor from escaping liability for a monetary obligation merely because payment has become impossible or difficult.

Older Ukrainian authorities often cite Article 218 of the Commercial Code. Law No. 4196-IX brought the Commercial Code out of force from 28 August 2025. Article 218 may still matter to disputes governed by the earlier regime, but it is no longer the current statutory basis for new contracts. Current analysis should start with the Civil Code and any applicable special legislation.

A UCCI Certificate Is Evidence Rather Than a Decision

Article 14-1 of the Law on Chambers of Commerce and Industry authorises the Ukrainian Chamber of Commerce and Industry and authorised regional chambers to certify force majeure. A contract-specific certificate can be important evidence, but the Supreme Court does not treat it as conclusive or as the only permitted proof. The court must assess the event, its effect on the particular obligation, the relevant period, and the full evidential record.

The Supreme Court’s 2026 guidance confirms that late delivery of a UCCI certificate does not by itself destroy the defence unless the contract expressly assigns that consequence. Notice and certification should therefore be kept distinct. Notice alerts the counterparty and may be a contractual condition. Certification supports proof, often after the event. Businesses should comply with both processes on time where possible, but they should not assume that a certificate replaces evidence of causation.

War and Martial Law Are Not Automatic Excuses

On 28 February 2022, the UCCI published general letter No. 2024/02.0-7.1 recognising Russia’s armed aggression and the resulting martial law as force majeure circumstances from 24 February 2022. The letter confirms the national event. It does not establish that every business was unable to perform every contract.

The Commercial Cassation Court applied that distinction repeatedly, including in case No. 912/750/22 of 7 June 2023. A more recent Joint Chamber judgment, case No. 910/881/24 of 6 February 2026, again held that martial law becomes force majeure in a particular relationship only when the party proves that a specific wartime restriction made the specific contract impossible to perform. General economic disruption or a reference to the UCCI letter is not enough.

The result changes when the evidence supplies the missing link. In case No. 903/573/22 of 9 May 2023, destruction of fuel stocks and the loss of an established supply route supported a direct connection between the war and non-performance. By contrast, a party that continued operating, had alternative means of performance, or relied only on financial strain will face a much harder case. The analysis must also separate temporary delay, permanent impossibility, and a request to reduce a penalty because the available remedies differ.

Construction Contracts Depend on Form Governing Law and Notice

Construction projects make the causation problem visible because delay often has several sources. A contractor may face war damage, labour shortages, sanctions, late design information, and its own pre-existing delay at the same time. The claim must connect the qualifying event to the affected activity and critical path, supported by programmes, notices, site records, procurement evidence, and mitigation steps.

FIDIC Contracts

The FIDIC 1999 Red, Yellow, and Silver Books address Force Majeure in Clause 19. The 2017 editions use the neutral term Exceptional Events in Clause 18. The forms require an event beyond a party’s control that could not reasonably have been provided against, avoided, or overcome and that is not substantially attributable to the other party. They generally require notice within 14 days, provide time relief for qualifying delay, allow cost recovery only for specified events and conditions, and permit termination after prolonged prevention, including the stated 84-day continuous and 140-day cumulative thresholds. Particular Conditions can change those results.

The governing law remains decisive. Under English law, the FIDIC wording is interpreted as a contractual allocation of risk, so Classic Maritime may matter where the contractor would have been late anyway. Under Ukrainian law, Articles 617, 625, and 652 and the rules on evidence remain relevant alongside the contract. Serving a FIDIC notice therefore does not by itself prove the Ukrainian-law defence.

Ukrainian cases No. 916/628/22 of 3 August 2023 and No. 910/6306/21 of 12 June 2024 illustrate the point. Continued work during the disputed period undermined the argument that martial law made performance, or timely payment for completed work, impossible. FIDIC’s own guidance on war, sanctions, inflation, and disrupted supplies similarly directs users back to the selected form, the actual facts, timely notices, and the distinction between time and money.

JCT and NEC Contracts

Standard forms allocate the same event differently. Depending on the edition and amendments, JCT forms may treat force majeure as a Relevant Event that supports additional time without a corresponding Relevant Matter for loss and expense. NEC forms use a prevention-event structure and include foreseeability and compensation-event rules. Parties should read the executed form rather than importing the result from another standard contract.

Steps to Take When Performance Is Disrupted

• Identify the governing law, the exact clause, the affected obligation, and the relief the contract makes available.

• Serve every required notice within the contractual deadline and preserve proof of delivery.

• Build a dated causal record showing how the event affected the specific obligation, including operations, personnel, logistics, banking, and the critical path.

• Document reasonable mitigation and any alternative means of contractual performance without assuming that a party must accept different performance.

• For Ukrainian-law claims, consider a contract-specific UCCI certificate while preserving independent evidence of causation.

• Separate a force majeure defence from hardship, price-adjustment, extension-of-time, termination, and penalty-reduction arguments.

Frequently Asked Questions

No. Under English law there is no standalone force majeure doctrine, so war excuses performance only where the clause’s wording captures it, construed strictly, and the affected party proves the event prevented or hindered the specific obligation. Ukrainian law treats war as force majeure in principle, but the party must still show it caused the particular non-performance and comply with notice and mitigation requirements. Certification and the contractual definition drive the outcome.
No. A contract-specific certificate can be valuable evidence, but Supreme Court case law treats it as neither conclusive nor the only permitted proof. The contract may nevertheless make timely certification a condition with defined consequences.
Only in limited circumstances. English law usually requires the clause to reach the payment problem, while Article 625 of the Ukrainian Civil Code makes monetary liability particularly difficult to avoid. Sanctions, illegality, and banking restrictions require a fact-specific analysis.
Ordinarily no. Under RTI v MUR [2024] UKSC 18, an English-law endeavours clause does not require acceptance of non-contractual performance absent clear words to that effect, though the affected party must still take reasonable steps directed at performing as agreed. Ukrainian law imposes an analogous good-faith duty to mitigate. Express wording specifying acceptable alternatives displaces the default.
The contractor should prove a qualifying event, timely notice, the event’s effect on the relevant activity and critical path, mitigation, and the contractual basis for time, cost, or termination. The governing law and Particular Conditions may add or change requirements.

Key Takeaways

Under English law, contractual wording controls force majeure and frustration remains a narrow fallback.

• Under Ukrainian law, Article 617 can relieve liability, but neither martial law nor a UCCI document proves causation by itself.

• Notice, certification, mitigation, and contemporaneous evidence should be managed as separate workstreams.

• Construction claims must connect the event to the programme and distinguish entitlement to time from entitlement to money or termination.

How Averites Can Help

Averites advises businesses, contractors, and project owners on cross-border contracts, force majeure notices, evidence strategy, and disputes under English and Ukrainian law. Contact us to discuss a clause, live disruption, or potential claim.