Beyond Control: How the 2026 Gulf Conflict Is Testing the Limits of Force Majeure Under Kuwaiti Law

13 min 1 sec April 3, 2026 (Edited)

Written by

Ahmad Mohammad Saleh

Senior Associate

ahmad.saleh@tamimi.com View LinkedIn Profile

Introduction

Force majeure is a fundamental concept in contract law that addresses the consequences of extraordinary events beyond the parties’ control that render contractual performance impossible or significantly more burdensome. Under Kuwaiti law, force majeure is recognized both as a statutory doctrine embodied in the Civil Code (Law No. 67 of 1980) and as a matter of contractual freedom, allowing parties to define and allocate the risks of supervening events within their agreements. This article examines the legal framework governing force majeure in Kuwait, the interplay between contractual provisions and statutory rules, the related doctrine of exceptional circumstances (hardship), and the practical implications for commercial parties, including recent examples of force majeure declarations in the region.

The Statutory Framework: Kuwaiti Civil Code

The Kuwaiti Civil Code contains several provisions that address the consequences of impossibility of performance and events beyond a party’s control. These provisions form the statutory backdrop against which contractual force majeure clauses operate.

Impossibility of Performance and Automatic Dissolution

Article 215 of the Kuwaiti Civil Code addresses the automatic dissolution of bilateral contracts when performance becomes impossible due to a foreign cause not attributable to either party. The provision states that where performance of the obligation of either contracting party becomes impossible for a cause not attributable to him, both that obligation and the counter-obligations of the other party shall lapse, and the contract is revoked automatically. Where the impossibility is partial, the creditor may, according to the circumstances, either invoke performance of the remaining enforceable part of the contract or apply for repudiation thereof.

Similarly, Article 214 addresses beneficence contracts (unilateral contracts), providing that if performance becomes impossible due to a cause not attributable to the debtor, the contract is dissolved automatically. Where the impossibility is partial, the creditor may invoke the remaining part of the obligation stipulated in the contract.

Extinction of Obligations

Article 437 provides a general rule that an obligation is extinguished if the debtor establishes that its performance has become impossible due to a cause beyond his control. This provision operates to discharge the debtor from liability where genuine impossibility can be demonstrated.

Liability and Force Majeure

Article 293 addresses the consequences of impossibility or delay in performance, stipulating that the debtor must compensate the creditor for any resulting damage unless the debtor establishes that non-performance or delay was due to a cause beyond his control. This provision places the burden squarely on the debtor to prove that the force majeure event occurred and caused the non-performance.

Article 243 addresses liability for damage caused by things requiring special care, such as motor vehicles, aircraft, machinery, animals, and buildings. A person having custody of such things is liable for damage caused unless he proves that the injury was due to a cause beyond his control, such as a force majeure, cas fortuit (act of God), or the act of the victim or a third party.

Specific Contract Types

The Civil Code also addresses force majeure in the context of specific contract types. For construction contracts, Articles 669 and 670 provide that where the work perishes or sustains damage due to an act of God (cas fortuit) or force majeure before delivery, the contractor may not claim the agreed consideration nor reimbursement of expenses, unless the employer had breached his obligation to take over the work at the time of the perishing or damage.

For lease contracts, Article 575 provides that if the leased property suffers total perishing due to a cause beyond the control of either contracting party, the contract is automatically rescinded.

Contractual Freedom: Agreeing on Force Majeure Terms

A critical feature of Kuwaiti law is the recognition that parties may contractually agree to modify the default statutory rules regarding force majeure and liability for events beyond their control.

Expanding Liability: Article 295

Article 295 of the Kuwaiti Civil Code expressly permits parties to agree that the debtor will bear liability resulting from a force majeure or an act of God. This provision allows parties to contractually expand the debtor’s risk exposure beyond what the default statutory rules would impose. For example, a contractor might agree to bear the risk of delays caused by force majeure events in order to secure a contract, or an insurer might assume liability for losses arising from acts of God.

Limiting Liability: Article 296

Conversely, Article 296 permits parties to agree to exonerate the debtor of responsibility for non-performance or delayed performance of contractual obligations, except for liability arising from the debtor’s own fraud or gross fault. This provision enables parties to limit liability exposure through contractual provisions. However, the limitation on exoneration for fraud or gross fault is mandatory and cannot be contracted out of.

Article 296 also permits the parties to agree to exonerate the debtor of responsibility for fraud or gross fault committed by persons employed by him to perform his obligation. This allows for broader exculpatory provisions covering the acts of agents and subcontractors.

Practical Implications

These provisions establish that the terms stipulated in a contract will govern the rights relating to force majeure to the extent agreed by the parties. Where parties have specifically defined force majeure events, allocated risks, or modified liability rules, those contractual terms will prevail over the default statutory provisions. This contractual freedom allows commercial parties to tailor their risk allocation to the specific circumstances of their transaction, the nature of the goods or services involved, and their respective bargaining positions.

However, parties should be mindful that any contractual provisions must not violate public order or mandatory provisions of law. The prohibition on contracting out of liability for fraud or gross fault (Article 296) represents one such mandatory limitation.

The Doctrine of Exceptional Circumstances (Hardship)

Beyond force majeure, which addresses situations of complete impossibility, Kuwaiti law recognizes a related doctrine dealing with circumstances that render performance excessively burdensome but not impossible. This doctrine, often referred to as exceptional circumstances or hardship, is embodied in Article 198 of the Civil Code.

Article 198: Judicial Adjustment of Oppressive Obligations

Article 198 provides that where, after the execution of a contract but before the completion of its performance, general extraordinary circumstances arose which could not have been foreseen at the time of execution, and which rendered the performance of the obligation oppressive to the debtor such as to threaten him with heavy loss, the judge may, after weighing the interests of both parties, reduce the oppressive obligation to a reasonable degree. This reduction may be achieved either by narrowing the extent of the obligation or by awarding a balancing increase to the consideration.

Notably, the article concludes by stating that any agreement otherwise shall be null, indicating that this protective provision cannot be waived by contract.

Distinguishing Force Majeure from Exceptional Circumstances

The key distinction between force majeure and exceptional circumstances lies in the degree of impact on performance. Force majeure applies where performance has become impossible, leading to extinction of the obligation and automatic dissolution of the contract. Exceptional circumstances apply where performance remains possible but has become unduly onerous, threatening the debtor with disproportionate loss. In the latter case, the remedy is not dissolution but judicial adjustment of the contractual terms to restore balance.

Legal commentators in the region have noted that these two doctrines share common elements: both require that the event be beyond the control of the party invoking relief, that the event could not reasonably have been foreseen at the time of contracting, and that the event must be independent of human action (in the sense that it could not be avoided through reasonable efforts). However, they differ in their effect. Force majeure results in the obligations under the contract being deemed impossible to perform and the contract thereby terminated, with the debtor not liable for the consequences of non-performance. In contrast, exceptional circumstances do not terminate the contract; rather, any losses are distributed between the debtor and creditor, with the debtor shouldering a part of the consequence of the extraordinary event.

The 2026 Conflict: US-Israeli Conflict with Iran

On 28 February 2026, the United States and Israel launched coordinated military strikes on Iran, targeting military facilities, nuclear sites, and Iranian leadership. Iran responded with retaliatory missile and drone attacks on Israeli territory, US military bases in the Gulf region, and several Gulf Arab states hosting US installations, including Qatar, Bahrain, the United Arab Emirates, Kuwait, and Saudi Arabia. The conflict rapidly escalated to affect energy infrastructure as well as everyday commerce across the region.

Force Majeure Declarations in the Gulf

The disruption to shipping and energy infrastructure prompted a cascade of force majeure declarations by major Gulf energy producers and industrial companies. On 7 March 2026, Kuwait Petroleum Corporation (KPC) began cutting oil production and declared force majeure, citing what it described as explicit threats by Iran against the safe passage of ships through the Strait of Hormuz, continuing Iranian attacks on Kuwait, and the near-total absence of vessels available to ship crude oil and products within the Arabian Gulf.^[1]

QatarEnergy declared force majeure on LNG shipments on 4 March 2026, following the suspension of operations at its facilities. Qatar’s Energy Minister Saad al-Kaabi warned that if the conflict continued for weeks, all exporters in the Gulf region would be forced to call force majeure, and that even if hostilities ended immediately, it would take Qatar weeks to months to return to a normal cycle of deliveries. The minister further warned that prolonged disruption would impact GDP growth worldwide and cause shortages of products with chain reactions affecting factories unable to maintain supply.^[2]

Other force majeure declarations followed across the region. Aluminium Bahrain halted shipments and declared force majeure because it could not move metal through the Strait of Hormuz. Qatari smelter Qatalum began shutting down operations. Major marine insurers cancelled war-risk coverage for vessels operating in Iranian, Gulf, and adjacent waters, further constraining commercial shipping.^[3]

Legal Analysis: Conflict as Force Majeure

The regional conflict and its consequences present a compelling case for the application of force majeure principles under Kuwaiti law. The US-Israeli strikes on Iran and Iran’s retaliatory attacks across the Gulf constitute events that were unpredictable to contracting parties, beyond the control of commercial actors, and impossible to avoid through reasonable measures. The IRGC warnings prohibiting vessel passage through the Strait of Hormuz and the resulting halt in shipping traffic rendered physical performance of many export contracts genuinely impossible.

Under the Kuwaiti Civil Code framework, parties whose contractual performance has been prevented by these events may invoke Article 437 (extinction of obligations due to impossibility beyond the debtor’s control) and Article 215 (automatic dissolution of bilateral contracts when performance becomes impossible due to a cause not attributable to either party). The burden remains on the party invoking force majeure to demonstrate the causal link between the conflict and the impossibility of performance.

For contracts where performance has become excessively burdensome rather than strictly impossible—for instance, where alternative shipping routes exist but at dramatically increased cost—the doctrine of exceptional circumstances under Article 198 may provide relief through judicial adjustment of obligations. The surge in freight rates, insurance premiums, and the necessity of longer alternative trade routes may constitute the kind of extraordinary circumstances threatening heavy loss that Article 198 contemplates.

Contractual Implications and Practical Considerations

Drafting Force Majeure Clauses

Given the interplay between statutory provisions and contractual freedom under Kuwaiti law, parties to commercial contracts should give careful attention to the drafting of force majeure clauses. Key considerations include the following.

First, parties should consider defining force majeure events with specificity. While broad language such as “events beyond the parties’ control” provides flexibility, specific enumeration of events (such as wars, epidemics, pandemics, government actions, natural disasters, and the like) provides greater certainty and reduces the potential for disputes.

Second, parties should address the consequences of force majeure events. Options include suspension of obligations for the duration of the event, extension of time for performance, termination of the contract if the event continues beyond a specified period, and allocation of costs and risks during the period of suspension.

Third, parties should consider notification requirements. Well-drafted clauses typically require the party invoking force majeure to provide prompt notice to the other party, along with evidence of the event and its impact on performance.

Fourth, parties should address mitigation obligations. Clauses may require the affected party to use reasonable efforts to mitigate the effects of the force majeure event and to resume performance as soon as practicable.

Fifth, parties should consider whether to expand or limit liability through the mechanisms provided by Articles 295 and 296 of the Civil Code, depending on their risk appetite and commercial objectives.

Notice and Documentation

Parties seeking to invoke force majeure should maintain comprehensive documentation of the events giving rise to the claim, the impact on their ability to perform, and the steps taken to mitigate the effects. Timely notice to the counterparty is essential, both as a matter of good faith and to preserve contractual rights. Failure to provide timely notice may prejudice a party’s ability to rely on force majeure provisions.

Burden of Proof

Under Kuwaiti law, the burden of proving force majeure rests on the party invoking it. The debtor must establish that the event occurred, that it was beyond his control, that it could not have been foreseen, that it rendered performance impossible (or, for exceptional circumstances, unduly burdensome), and that the debtor took reasonable steps to avoid or mitigate its effects.

Limitations on Contractual Exclusions

While Kuwaiti law permits significant contractual modification of force majeure rules, parties should be aware of mandatory limitations. The prohibition on excluding liability for fraud or gross fault cannot be waived. Similarly, the protective provisions of Article 198 regarding exceptional circumstances cannot be contracted out of, as any agreement otherwise is expressly declared null.

Conclusion

Kuwaiti law provides a comprehensive framework for addressing force majeure and exceptional circumstances in commercial contracts. The Civil Code establishes default rules for impossibility of performance, automatic dissolution of contracts, and extinction of obligations, while simultaneously recognising the freedom of parties to allocate risks through contractual provisions. Parties may agree to expand the debtor’s liability to cover force majeure events, or conversely to limit liability for non-performance, subject to mandatory prohibitions on excluding liability for fraud or gross fault.

The statutory framework also recognises the distinct doctrine of exceptional circumstances, which permits judicial adjustment of contractual obligations where unforeseen events render performance unduly burdensome but not impossible. This doctrine provides an additional layer of protection for parties facing extraordinary commercial disruption.

The 2026 conflict between Iran and the US and Israel has demonstrated the profound practical importance of force majeure provisions in commercial contracts. The cascade of force majeure declarations by Kuwait Petroleum Corporation, QatarEnergy, Aluminium Bahrain, and other major regional enterprises illustrates how armed conflict and its consequences can render contractual performance impossible on a massive scale. These events underscore the need for parties to commercial contracts to carefully consider how force majeure and related doctrines may apply in circumstances of regional conflict and to draft contractual provisions that clearly address such contingencies.

For parties entering into commercial contracts governed by Kuwaiti law, careful attention to the drafting of force majeure provisions is essential. Clear definition of triggering events, specification of consequences, notification requirements, and mitigation obligations will help ensure that the parties’ intentions are given effect and that disputes can be resolved efficiently. Where parties wish to modify the default statutory rules, they should do so expressly and with full awareness of the mandatory limitations that apply. By understanding and properly utilising the legal tools available under Kuwaiti law, commercial parties can effectively allocate and manage the risks of extraordinary events that may affect their contractual relationships.

[1] https://www.reuters.com/business/energy/us-israeli-war-iran-causes-major-oil-gas-disruptions-2026-03-03/

[2] https://www.aljazeera.com/news/2026/3/6/qatar-warns-iran-war-could-halt-gulf-energy-exports-within-weeks\

[3] https://www.aljazeera.com/news/2026/3/6/qatar-warns-iran-war-could-halt-gulf-energy-exports-within-weeks