Frustration of contracts in emerging markets Emerging markets hold opportunities but carry greater risk Political change Civil unrest/instability Supply chain/contractor issues Sanctions Immature/unreliable legal system How does contract law deal with these issues? Doctrine of frustration Force majeure clauses How can you minimise these risks at the contract drafting stage? Investment structuring Drafting of contractual provisions

1. Frustration of contracts – emerging markets,
civil unrest and political change
Mark Davenport, Partner, Head of International Commercial Disputes
Richard Little, Partner, Commercial Dispute Resolution
Eversheds LLP
30 January 2014

2. Frustration of contracts
Today’s speakers
Mark Davenport
Partner
Head of International
Commercial Disputes
Richard Little
Partner
Commercial Dispute
Resolution

3. Agenda
•
Frustration of contracts in emerging markets
– Emerging markets hold opportunities but carry greater risk
• Political change
• Civil unrest/instability
• Supply chain/contractor issues
• Sanctions
• Immature/unreliable legal system
•
How does contract law deal with these issues?
• Doctrine of frustration
• Force majeure clauses
•
How can you minimise these risks at the contract drafting stage?
– Investment structuring
– Drafting of contractual provisions

4. Emerging Markets Risks
•
Political Change
– Risk of change of government and/or prevailing policies
• Nationalisation of industry
• Export bans
– Eg Indonesia’s recent ban on nickel and bauxite exports
• Restrictions on repatriation of profits
• Removal of government incentives and subsidies
– New regimes (and their State companies and organisations) may
seek to rewrite existing deals and contracts

5. Emerging Markets Risks
•
Political Change
– Case Study: Egypt from 2011
• New government re-evaluated many contracts and arrangements
agreed to by the previous regime
• 12 publicly disclosed investment treaty claims have been
commenced against Egypt following resignation of Mubarak in
February 2011 – as against 11 claims against Egypt commenced
in total across all years up to 2011
– Be aware of:
• What is a strict contractual right and what is an understanding or
arrangement
• The forum for enforcing rights

6. Emerging Markets Risks
•
Civil Unrest
– Civil unrest may result from political or economic instability – and
itself lead to difficulties in performing and/or enforcing contracts
during period of unrest
• Government entities may not be operating or operating normally
• Private counterparties may be unable or unwilling to operate due
to safety concerns
– Can also cause or act as a catalyst for other risks – for example, a
change in government policy or in the behaviour of a government
controlled counterparty

7. Emerging Markets Risks
•
Civil Unrest
– In extreme cases – for example the Arab Spring – performance of
contracts may grind to a standstill
– Whether this will amount to frustration (or fall within a force majeure
clause) will depend on the contract.

8. Emerging Markets Risks
•
Supply chain / contractor issues
– Conditions in emerging markets differ from home jurisdiction
• Security restrictions preventing or delaying movement of people
and parts
• Geographic remoteness
• Extreme weather conditions and reduced capacity to deal with
natural disasters
• Local labour requirements

9. Emerging Markets Risks
•
Supply chain / contractor issues
– Lack of readily available alternative suppliers and contractors
– Case Study: Contractor in Kurdistan, Iraq
• Ordinarily simple tasks – repair of broken machinery or
replacement of staff - can take months rather than days

10. Emerging Markets Risks
•
Immature/Unreliable legal remedies
•
Availability of formal remedies
– Local courts may apply local law provisions or have different powers
to those available in UK courts
– Counterparties may have privileges or immunities before local courts
•
Availability of effective remedies
– Extreme delay (eg India)
– Lack of effective enforcement of judgments of domestic courts in
place of performance, or of foreign judgments within place of
performance

11. Emerging Markets Risks
•
Immature/Unreliable legal remedies
•
Jurisdiction or Arbitration clauses are a separate topic – but important to
factor in efficacy of enforcement measures into business contingency
planning
• Case Study: Enforcement of Injunction

12. Emerging Markets Risks
•
Sanctions
– Used to combat terrorism and discourage regimes/individuals from
acting in ways condemned by the international community
– Seek to prevent targeted individuals/entities from dealing with their
funds and accessing financial services
– For example:
• making a payment to a targeted entity
• dealing with funds owned or controlled by a targeted entity
– Backed by civil and criminal penalties

13. The sanctions life cycle
Stage 1
Crisis in the
making
Stage 4
The lifting of
sanctions
Stage 2
Sanctions
imposed and
implemented
Stage 3
The crisis
deepens and
sanctions
evolve

14. Sanctioned jurisdictions
Iran
Myanmar
Syria
Iraq
Afghanistan
Sudan
Congo
Liberia
The Ivory
Coast
Tunisia
Zimbabwe
North Korea
Egypt
The
Republic of
Guinea
Somalia
Cuba

15. Emerging Markets Risks
•
Sanctions
– Sanctions levied against many emerging markets – particularly in the
Middle East and Africa
– Removal or relaxation of sanctions allows increased opportunities for
investment
– Targets and nature of sanctions may evolve – in both directions over life of contracts
– Lessons for Myanmar?

16. Risks and contract law
Poll
How does your business deal with risk in emerging markets?
A. Considering these risks as part of the overall cost-benefit analysis of any
dealing in that jurisdiction
B. Insurance policies covering these risks
C. Adapting our payment and supply terms – e.g. requiring payment in
advance
D. Adapting contracts so that we avoid or vary our obligations in the event
that certain events come to pass

17. Risks and contract law
•
Frustration
– Depending on its severity, incidents may invoke the legal doctrine of
frustration
– Under English law, a contract is frustrated where circumstances
change in such a significant way that it is physically or commercially
impossible to perform the contract, or that contractual performance
would be radically different from the obligations that were originally
agreed to
– The frustrating event must have occurred without the fault of the
party seeking to rely on it
– Doctrine operates within narrow confines

18. Risks and contract law
•
Frustration
– Matters which have led to the frustration of contract have included a
change in law which makes contractual performance illegal, the
destruction or government appropriation of the subject matter of a
contract
– If an event was foreseen at the time of contracting, this generally
excludes the operation of the doctrine of frustration

19. Risks and contract law
•
Frustration
– Effect of frustration is that once a contract is frustrated, it is
discharged finally and automatically
• No requirement for a ‘frustration notice’
• Loss lies where it falls – subject to statutory changes which can
lead to a reallocation of progress payments
• Contract cannot be frustrated (in this strict legal sense) only for
a period of time – this can lead to significant uncertainty when a
contract falls dormant

20. Risks and contract law
Force Majeure
•
No inherent meaning to force majeure under English law – will depend on
wording of contract.
– Force majeure does have a common meaning in other jurisdictions
and the UNIDROIT Principles of International Commercial Contracts,
(which has some similarities to the English law doctrine of frustration)
•
As there is no fixed meaning, it is therefore critical that the events or
circumstances which constitute force majeure are defined in the contract
•
The wording of a force majeure clause is an important part of the
allocation of risk in a contract, and should be drafted and negotiated as
part of that framework – there is no one boilerplate ‘force majeure
clause’

21. Risks and contract law
FIDIC:
Force majeure means an exceptional event or circumstance:
a)
“which is beyond a Party's control”,
b)
“which such Party could not reasonably have provided against before entering
into the Contract”,
c)
“which, having arisen, such Party could not reasonably have avoided or
overcome”, and
d)
“which is not substantially attributable to the other Party."

22. Risks and contract law
FIDIC:
Under FIDIC, force majeure must include the above four elements, and may include,
but is not limited to:
– “war, hostilities…invasion, act of foreign enemies”,
– "rebellion, terrorism, revolution, military or usurped power or civil war,"
– "riot, commotion, disorder, strike or lockout by persons other than the
Contractor's personnel and other employees of the Contractor and Subcontractors“; and
– “natural catastrophes such as earthquake, hurricane, typhoon or volcanic
activity”

23. Risks and contract law
Poll
Which of the below is a potential effect of a force majeure clause?
A.
B.
C.
D.
A suspension of contractual obligations
A variation of contractual obligations
Termination of the contract
All of the above

24. Risks and contract law
•
Effect of force majeure situation under the wording of contract
– Answer is D – the effect of a force majeure contract is governed by
the terms of contract
– A situation of force majeure may lead:
• to a temporary suspension of contractual obligations on behalf of
one or both parties;
• a variation of other contractual obligations – for example, a
deferral or reduction in payments, or a variation in otherwise
applicable exclusivity terms;
• after a defined period of time, termination rights.
– A situation of force majeure will mean that a party cannot make a
breach of contract claim that it would otherwise be able to make
against a supplier.

25. Risks and contract law
•
Effect of force majeure situation under the wording of contract
– Remember, a force majeure clause is an allocation of risks between
the parties.

26. Drafting contracts – investment structuring
•
Emerging markets can carry increased political and business risk
•
To manage this risk, investments are commonly structured in a manner that
maximises protection under international investment treaties
•
These investment treaties – often referred to as ‘BITs’ (bilateral investment treaties)
or ‘MITs’ (multilateral investment treaties)- are agreements between States, which
enable foreign investors with a properly structured investment to be protected
against unlawful State interference with their investment

27. Drafting contracts – investment structuring
•
Under these treaties, each State commits to various obligations in relation to foreign
investors or investments – for example, to provide fair and equitable treatment to
foreign investors and compensation to them in the event of expropriation of their
investment
– Provides rights and protections to investing companies which are actionable
directly against the State
– Often signed by States with emerging economies to incentivise economic
development
•
To maximise the protections available to them, investors must consider the
investment treaty framework before investing in a foreign State

28. Drafting contracts – force majeure clauses
•
Tips
– Consider whether a force majeure clause is desirable and, if so, its
scope
– Invoking a force majeure clause is rarely a ‘trump card’ – many will
only provide for a temporary suspension of contractual obligations,
will offer corresponding variations to the counterparty, and may refer
to obligations to prepare and implement a business continuity plan
– Consider interaction with insurance policies
• Is your counterparty likely to be (or easily able) to insure against
these risks?
• What are the limitations of your own insurance?

29. Drafting contracts - Sanctions clauses
•
Will not discuss sanctions compliance per se – but effect on contracts
•
Introduction of sanctions may make contractual performance illegal or
impossible
•
Particular difficulties may arise where sanctions are imposed in one
jurisdiction (e.g. UK or US) with extraterritorial effect, but not enforced in
another jurisdiction (State where contract is performed or home State of
counterparty)
– Addressed through appropriate sanctions clause
•
Go beyond FM/frustration clauses
•
Wording of clause will vary depending on nature of contract

30. Summary
•
Emerging markets hold opportunities but carry greater risk
– These risks can change dramatically over the life of a contract
•
The legal effect of emerging markets risks upon contracts can be
uncertain
•
The starting point is the contract - the best way of reducing risk and
uncertainty is at the contract drafting stage, when making the initial
investment
•
Consider:
– investment structuring to access investment treaty protections
– force majeure and/or sanctions clauses to reduce uncertainty
– what sort of force majeure clause you want – it may not be the other
side’s boilerplate!

31. Frustration of contracts
Contact
Mark Davenport
DD: 0845 497 4996
Intl: +44 20 7919 4996
markdavenport@eversheds.com
Richard Little
DD: 0845 497 0602
Intl: +44 20 7919 0602
richardlittle@eversheds.com

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