Between cancellations, non-payment, delivery delays and others, the war in Ukraine brings back memories of the Covid 19 pandemic which had already disrupted the proper execution of international contracts in 2020. The economic and legal consequences have gone beyond the Russian-Ukrainian borders, impacting trade relations in all four corners of the world… 

Whether in direct or indirect trade relations the result is the same, the company is affected. Indeed, as international trade specialists have pointed out, “Regulations concerning sanctions are changing, almost daily. A French company that was not affected by them yesterday may become so tomorrow. For example, one of our clients has seen its contract with a Turkish company suspended because it is controlled by a Russian oligarch sanctioned by European measures.” 

Many sectors have been placed under restrictions, including those of import/export, forcing many companies to end their relations with Ukraine or Russia. This is the case, for example, of the Nestlé company, which has decided to stop marketing some of its brands in Russia. Others have not made commitments of such magnitude but have suspended their investments in Russia, while maintaining the production and distribution of its products, as the Danone group has done. 

But other problems arise, the question of employees of companies located in Ukraine: companies have a duty to protect their staff. Djoca Travel, a hotel company of French origin established in Ukraine, was confronted with this situation, and decided to repatriate them, first through the Polish border, to finally arrive in the South West of France.   

However, unfortunately, not all companies are able to carry out such procedures for their employees… 

In the end, it is also the question of salaries that arises, should they continue to be paid? Should their salaries be adapted to the country to which they have been repatriated? And the question of their possible relocation if Ukraine does not reopen immediately… 

So, the war, a case of force majeure? This is the main question for companies since the Russian-Ukrainian conflict broke out, and more specifically, whether current contracts can be terminated for force majeure.  

In principle, according to the provisions of Article 1218 of the French Civil Code, “There is force majeure in contractual matters when an event beyond the control of the debtor, which could not be reasonably foreseen at the time of the conclusion of the contract and the effects of which cannot be avoided by appropriate measures, prevents the performance of his obligation by the debtor.” 

In practice, if it is established that events, in this case acts of war, prevent the other party from performing its contractual obligations, the case of force majeure may be pleaded.  

It is therefore necessary to look carefully at what the contract provides for, in particular the applicable law (to ensure that force majeure is provided for), whether a force majeure clause has been included in it, and finally to notify the co-contractor of the case of force majeure as soon as possible. 

First by the pandemic and then by this Russian-Ukrainian war, the importance of the drafting of the force majeure clause is growing …