Two months have passed since the outbreak of hostilities in the Middle East. Thankfully a temporary ceasefire stays in place 
but with the Straits of Hormuz still effectively closed, commercial activities remain heavily impacted across the region. The ongoing effects of this Force Majeure event continue to impact live projects across the region. Delayed shipments, missing equipment, specialists who simply can’t get to site, and many other parts of the supply chain continue to be badly impacted.
There has already been a lot of very useful commentary from the major law firms on whether or not these events constitute Force Majeure under various contracts and jurisdictions. The issue that most industry players are now dealing with is how to mitigate the impacts of these events.
Most EPC contracts in the region, particularly those governed by English law, include standard mitigation wording along the lines of: “The Affected Party shall make all reasonable efforts to prevent, reduce to a minimum and mitigate the effect of any delay…”. Understanding the full extent of this obligation is often a challenge.
Mitigation as a Condition to Relief
Under English law governed contracts, mitigation is not simply good practice, it is often a condition precedent to entitlement. A failure to demonstrate reasonable endeavours (or all reasonable endeavours) can defeat an otherwise valid Force Majeure claim.
As highlighted in the Baker Botts client alert (01 April 2026), mitigation obligations frequently operate as a precondition to relief and must be supported by contemporaneous evidence. The same alert emphasises that parties must actively explore alternative logistics, suppliers or new delivery routes and document why various options are or are not viable.
Reasonable vs All Reasonable
Under English law, the key difference lies in the level of effort required: “reasonable mitigation” covers standard steps to avoid unnecessary loss, whereas “all reasonable” measures imply a stricter, proactive endeavour – often requiring a contractor to explore every potential option to limit delays or costs. In essence:
Reasonable measures require a contractor to take sensible, common-sense steps to minimize delays without sacrificing their own commercial interests. They only need to pursue a single logical path of action and are generally not expected to incur significant unplanned costs or work at a loss to overcome the event.
All reasonable measures on the other hand, impose a much stricter burden, often requiring the contractor to exhaust every viable option available. This means that if several workarounds exist, the contractor must attempt them all; they may even be required to spend extra funds or resources to keep the project moving, as they must prove that no other practical steps could have been taken to mitigate the impact.
Whilst the distinction can at times be grey, the obligation is not unlimited.
The Paul Hastings client alert (15 April 2026) confirms that mitigation does not require a party to accept ruinous cost, fundamentally restructure its operations, or take on disproportionate risk. The test remains one of commercial reasonableness – not theoretical possibility.
Mitigation as an Evidential Exercise
Two months in, recorded mitigation efforts are now being tested and challenged. The recent alerts from Baker Botts (01 April 2026), Curtis, Mallet-Prevost, Colt & Mosle LLP (25 March 2026) and Al Tamimi & Company (09 March 2026) all point in the same direction: mitigation will ultimately be judged on evidence.
That shifts the discussion in a very practical way. It is not enough for a Contractor to say that alternatives were unavailable. The expectation is that they can demonstrate:
- what alternatives were identified at the time;
- what steps were taken to pursue them;
- why those options were rejected or failed; and
- how this impacted the critical path of the project.
The Paul Hastings (15 April 2026) alert reinforces this by focusing on the concept of commercially realistic alternatives. The question is no longer whether an alternative was theoretically possible, but whether it was realistically achievable within the constraints of the project.
In practice, this creates a much narrower test. Parties are not expected to solve the force majeure disruption – they are expected to show that they tried, properly and contemporaneously, and that only the chosen reasonable solution(s) remained.
Hardship vs Impossibility
A central tension in current Force Majeure claims is cost. English law is clear: increased cost alone does not excuse performance. But equally, mitigation does not require a party to absorb unlimited or uncommercial cost exposure. The Pinsent Masons analysis (March 2026) is useful here. It distinguishes between:
- Impossibility (performance cannot be achieved)
- Hardship (performance is possible but excessively onerous)
Mitigation sits between these concepts – it is the test of how far a party must go before performance moves from difficult to genuinely impossible. In practical terms:
- Moderate, proportionate cost increases may be expected
- Significant, unpriced or open-ended exposure is unlikely to be required
- Measures that fundamentally alter the bargain are unlikely to qualify as reasonable.
Documentation – Records, Records, Records
Across all sources, one theme is consistent: mitigation must be demonstrated, not assumed.
The Baker Botts alert stresses the importance of building a clear causation narrative supported by contemporaneous records. Similarly, Pinsent Masons highlights the need for granular, date stamped evidence showing what was impacted, when, and what steps were taken in response.
In practice, this includes:
- Supplier enquiries and refusals
- Shipping availability and routing attempts
- Insurance constraints
- Workforce availability and substitution efforts
This is where many claims are already succeeding or failing. Generalised assertions of disruption are not enough. Owners and tribunals alike expect a structured, evidence backed mitigation story.
Where This Leaves Contractors and Employers
Two months into the conflict, the position is becoming clearer. Whilst many Owners will not concede that a Force Majeure has occurred, or that it was properly notified, they will nonetheless expect the Contractor to mitigate the impact of the event. Owners will often treat mitigation obligations as effectively unlimited and the Contractor must stay mindful that:
- They actively pursue mitigation and be seen to do so
- The standard of mitigation depends on the contractual wording
- Commercial realism still remains central -“all reasonable” is not “all possible”
- Documentation will be critical in determining entitlement
The ongoing effect of recent events may continue for some time. Indeed, the impacts may well continue for many months after. The resultant claims may not be settled for years. Never has it been more important to record everything and submit, like clockwork, in accordance with the Contract.
Sources
- Baker Botts, Force Majeure and the Middle East Conflict: Ten Practical Tips for Contracting Parties, 01 April 2026
- Curtis, Mallet-Prevost, Colt & Mosle LLP, Legal Considerations for Projects in the Middle East in Light of the Current Conflict, 25 March 2026
- Al Tamimi & Company, Regional Developments: Force Majeure and Delay Considerations for Construction Projects, 09 March 2026
- Pinsent Masons, Middle East conflict: force majeure and construction implications, March 2026
- Paul Hastings, The Middle East Conflict: Key Legal Considerations for Investors and Commercial Operators, 15 April 2026
davidbrodiestedman@dispute-iq.com
Disclaimer
This article is provided for general information and discussion only. It does not constitute legal advice, expert advice, or professional opinion on any specific matter. Views expressed are those of the author and not necessarily those of DisputeIQ or its experts. Readers should seek appropriate professional advice before acting on any issue discussed.
