Introduction
The conflict in the Middle East has brought disruption to key trade routes and site operations, bringing force majeure provisions to the forefront of commercial strategy in the region. The 1999 Fédération Internationale des Ingénieurs–Conseils ("FIDIC") Conditions of Contract for Construction for Building and Engineering Works Designed by the Employer (the "1999 Red Book") serves as the primary standard form for construction and engineering projects across the region, shaping the contractual framework for both local and international participants.
This article will explore the application of the Force Majeure provisions under the 1999 Red Book,1 outlining the steps contractors should take when invoking these provisions and points employers should note when responding to such claims, providing guidance for both parties navigating these complex and evolving challenges.
The Contractual Definition of ‘Force Majeure’ in the 1999 Red Book
'Force Majeure' is defined in Sub-Clause 19.1 (Definition of Force Majeure) of the 1999 Red Book, and requires an 'exceptional event or circumstance':
(a) beyond the Party’s control;
(b) which the affected Party could not reasonably have provided against before entering into the Contract;
(c) which, having arisen, the affected Party could not reasonably have avoided or overcome; and
(d) which is not substantially attributable to the other Party.
A non-exhaustive list of the kind of exceptional events or circumstances that might amount to Force Majeure is then set out in Sub-Clause 19.1, and includes:
(i) war, hostilities (whether war be declared or not), invasion, act of foreign enemies;
(ii) rebellion, terrorism, revolution, insurrection, military or usurped power, or civil war;
(iii) riot, commotion, disorder, strike or lockout by persons other than the Contractor’s Personnel and other employees of the Contractor and Subcontractors;
(iv) 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
(v) natural catastrophes such as earthquake, hurricane, typhoon or volcanic activity.
The occurrence of one or more of these events or circumstances does not necessarily mean that it constitutes Force Majeure. The conditions in (a) to (d) above must also be satisfied, and the event or circumstance must be exceptional. The distinction between the events or circumstances described in paragraphs (i) to (v) lies in the Contractor's entitlement — some events entitle the Contractor to both time and Cost, whilst others provide entitlement to time only.
Time and Cost
If the event is an exceptional event or circumstance and the requirements in paragraphs (a) to (d) (above) have been satisfied, subject to Sub-Clauses 19.2 (Notice of Force Majeure) and 20.1 (Contractor's Claims), the Contractor is entitled to an extension of time, if completion is or will be delayed under Sub-Clause 8.4 (Extension of Time for Completion).
The Contractor is entitled to payment of Cost, subject to Sub-Clauses 19.2 and 20.1, if the event or circumstance that has occurred constitutes Force Majeure and falls within items (i) to (iv) of the illustrative events listed in Sub-Clause 19.1 (above). However, for events (ii) to (iv), the entitlement to Cost only arises if these events occur within the Country. In the 1999 Red Book, 'Country' means the country in which the Site (or most of it) is located, where the Permanent Works are to be executed. By Sub-Clause 19.4(b) (Consequences of Force Majeure), the Contractor is not entitled to payment of Cost for the natural catastrophes described in item (v) of Sub-Clause 19.1 (above).
Mitigation
In accordance with Sub-Clause 19.3 (Duty to Minimise Delay), both Parties must use all reasonable endeavours to minimise any delay caused by Force Majeure, and the affected Party must promptly notify the other Party when it is no longer prevented from performing by Force Majeure.
Procedure
Under Sub-Clause 19.2, if a Party is or will be prevented from performing any of its obligations under the Contract by Force Majeure, that Party must give notice to the other Party of the event or circumstances constituting the Force Majeure, and the obligations that the Party is being prevented or will be prevented from performing due to the identified Force Majeure. The notice must be issued within 14 days of the Party becoming aware, or when it should have become aware, of the identified Force Majeure.
Where the Contractor is the claiming party, the Contractor must also comply with the claims procedure in Sub-Clause 20.1. In the 1999 Red Book, Contractor claims are subject to a time-bar provision, by which failure to give a notice of claim within 28 days after the Contractor became aware, or should have become aware, of the event or circumstance giving rise to the claim will result in the Contractor losing its entitlement to an extension of time or additional payment. The Contractor's fully detailed claim is then due within 42 days after it became aware (or should have become aware) of the event or circumstance giving rise to the claim. If the event or circumstance giving rise to the claim has a continuing effect, the fully detailed claim shall be considered as interim, the Contractor shall send further interim claims at monthly intervals and a final claim within 28 days after the end of the effects resulting from the event or circumstance, or another timeframe approved by the Engineer.
Excuse From Performance
Once notice of Force Majeure is given under Sub-Clause 19.2, the affected Party is excused from performing the specified obligations for as long as the Force Majeure event prevents performance.
Additionally, Sub-Clause 19.5 (Force Majeure Affecting Subcontractor) clarifies that any broader or additional relief a Subcontractor may have under its agreement with the Contractor does not relieve the Contractor of its obligations under the Contract.
Termination
By Sub-Clause 19.6 (Optional Termination, Payment and Release), either Party may terminate the Contract if Force Majeure prevents the execution of substantially all the Works in progress for a continuous period of 84 days or a cumulative total of 140 days and the notice requirements under Sub-Clause 19.2 have been satisfied. Termination is exercised by giving notice and takes effect seven days after the notice is given.
Upon termination, the Contractor must cease all work, hand over paid-for Documents, Plant, and Materials, and clear the Site in accordance with Sub-Clause 16.3 (Cessation of Work and Removal of Contractor's Equipment). Additionally, the Engineer is required to determine the value of work done and to issue a Payment Certificate which shall include:
(a) payment for any work carried out for which a price is stated in the Contract;
(b) the Cost of Plant and Materials ordered for the Works which have been delivered to the Contractor or of which the Contractor is liable to accept delivery;
(c) any other Cost or liability which, in the circumstances, was reasonably incurred by the Contractor in the expectation of completing the Works;
(d) the Cost of removing Temporary Works and Contractor’s Equipment from the Site and returning them to the Contractor’s works in its country (or to any other destination at no greater cost); and
(e) the Cost of repatriation of the Contractor’s staff and labour employed wholly in connection with the Works at the date of termination.
Conclusion
While the Contractor may argue that the conflict in the Middle East falls within the illustrative events of Sub-Clause 19.1(i) (e.g., war or hostilities), this does not grant an automatic entitlement to time or Cost. To succeed, the Contractor must first prove that the event meets the four cumulative criteria in Sub-Clause 19.1(a)–(d). For example, under paragraph (c), the Contractor must demonstrate that the event could not have been reasonably avoided or overcome. Recovery is further conditioned upon the Contractor's adherence to the notice provisions of Sub-Clauses 19.2 and 20.1, and its ability to substantiate that all reasonable measures were taken to mitigate delay in accordance with Sub-Clause 19.3.
In these circumstances, the Employer must critically evaluate whether the Contractor's performance was genuinely prevented by the conflict rather than by unrelated commercial or logistical failures. Specifically, the Employer should verify that the nexus between the event and the actual delay or disruption is clearly established and documented. Furthermore, the Employer must audit the Contractor's mitigation efforts to confirm that all reasonable steps were taken to minimise the impact of the event on the project's timely completion.
1 Equivalent provisions exist in the 1999 FIDIC Conditions of Contract for Plant and Design Build for Electrical and Mechanical Plant and for Building and Engineering Works, Designed by the Contractor (the Yellow Book) and the 1999 FIDIC Conditions of Contract for EPC/Turnkey Projects (the Silver Book).
White & Case means the international legal practice comprising White & Case LLP, a New York State registered limited liability partnership, White & Case LLP, a limited liability partnership incorporated under English law and all other affiliated partnerships, companies and entities.
This article is prepared for the general information of interested persons. It is not, and does not attempt to be, comprehensive in nature. Due to the general nature of its content, it should not be regarded as legal advice.
© 2026 White & Case LLP
