ر قطر على الالتزامات التعاقدية من منظور قوانين التجارة الدولية: اتفاقية الأمم المتحدة في العقود للبيع الدولي للبضائع 1980 ومبادئ الينيدروا 2016 نموذجًا

Abstract

This article discusses the implication of Qatar blockade on goods and services contracts between merchants in Qatar and their countparts whether in the blockade countries or otherwise. This is being tackled under both the CISG 1980 and the UNIDROIT Principles 2016. According to the CISG 1980, Qatar blockade amounts to an impediment that makes performance of contractual obligations impossible, as all such relevant conditions provided for under article 79 of the CISG exist; namely: that the blockade is unreasonably expected at the time of contracting, out of control, unavoidable, and that the consequences thereof cannot be overcome. As for the legal consequence of considering Qatar blockade an impediment, article 79 of the CISG provides that the non-performing party will not be oliged to pay damages, albeit the contract itself remains in existence. Yet, either contract party may seek avoidance, provided that the conditions of such a remedy, most importantly fundamental breach, are met. Under the UNIDROIT Principles 2016, Qatar blockade satisfies the conditions of hardship provided for under article 6 of the Principles, rendering the contractual relationship to be therefore fundamentally imbalanced. Likewise, Qatar blockade satisfies the conditions of an event “being unexpected, out of control, prior to contracting and unassumed in previous dealings”. The legal consequences of hardship under the Principles is the possibility of renegotiation of the contract, and if such renegotiation fails, either party may seek a court interferance to either restore the contract balance or terminate the contract.

This study has resulted in a number of conclusions, the main important of which is that any future blockade on Qatar, having already taken place, cannot be considered as an impediment. Rather, parties to Qatar-related contracts need to start taking its possible re-occurrence into their consideration. Indeed, this fact will likely reduce clarity and certainty in legal dealings. Furthermore, the remedy provided for in article 79 of the CISG has been found to be irrational, considering its consequence in renduring a contract valid while the excuction thereof is in reality impossible. Finally, it is found that the Principles does not set a clear criterion for what is to be deemed a fundamental contractual imbalance, justifying thereby the renegotiation of contract or the referral of the same to court for determination. This results in the fact that parties to many contracts which their performance is burdensome, will remain bound by their contract and will be jeoprodized from any legal protection.