In today’s operating environment, disruption is no longer exceptional; it is a structural feature of project delivery across the UAE and wider region. Whether arising from geopolitical developments, supply chain constraints, regulatory intervention, or contractor-side resource issues, projects are increasingly exposed to events said to fall outside the control of either party.
From a disputes perspective, what is notable is not simply the increase in such events, but the frequency with which they are being relied upon in formal proceedings. Force majeure provisions under FIDIC are no longer theoretical. They are being tested before tribunals, raised in expert determinations, and increasingly scrutinised in the UAE onshore litigation.
Across the FIDIC suite of contracts, the Red Book, Yellow Book, Silver Book, and their successors, the force majeure regime is anchored in Clause 19. While considerable attention is often directed to the definition of force majeure under Sub-Clause 19.1, and to the consequences of such events under Sub-Clause 19.4, it is Sub-Clause 19.2 that frequently determines the outcome. That provision governs the notice requirement, and in practice, it is this requirement that determines whether a party’s rights survive.
In UAE disputes, it is rarely the existence of a disruptive event that is contested in isolation. The real battleground is whether the contractual mechanism has been properly engaged. Sub-Clause 19.2 sits at the centre of that analysis.
The key point is that entitlement does not stem from the occurrence of an event alone, but rather from strict compliance with the contractual mechanism governing it. Central to that mechanism is Sub-Clause 19.2. Far from being a procedural formality, it operates as a critical requirement, demonstrating that it is not the force majeure event itself that proves decisive, but how, and whether, it is properly notified.
Beyond Formality: The True Role of Sub-Clause 19.2
Sub-Clause 19.2 is often treated operationally as a notice provision. In practice, particularly in disputes before UAE courts and arbitral tribunals, it performs a far more substantive role.
It is the mechanism by which a factual disruption is translated into a legally recognisable claim.
In UAE onshore litigation, courts place significant weight on contemporaneous documentation. A party’s entitlement is not reconstructed retrospectively; it is assessed based on what was recorded and communicated at the time. In that context, a compliant notice under Sub-Clause 19.2 is not procedural, it is evidential and foundational.
From a legal perspective, the clause serves two primary functions:
- Triggering Contractual Protection: Without a notice that substantially complies with Sub-Clause 19.2, the affected party risks forfeiting its entitlement to relief under Sub-Clause 19.4 entirely. The notice is not a precursor to the claim; it is rather a condition precedent to it.
- Defining the scope of relief: The notice establishes the factual and contractual framework upon which any subsequent entitlement to an extension of time or additional cost will be assessed. It is not merely evidence; it is the foundation of the claim itself.
In short, Sub-Clause 19.2 is where the claim begins. If it is not done properly at that stage, it is rarely cured later.
The Critical Requirement: “Specification”
The obligation to “specify” the affected obligations is one of the most misunderstood aspects of Sub-Clause 19.2, and one that regularly becomes decisive in disputes.
From a UAE disputes perspective, this requirement is tested rigorously against the project record, including programmes, site reports, and expert evidence.
It is not sufficient to state that “the project is delayed” or “works are impacted.” What is required, and what courts and tribunals expect to see, is a clear articulation of:
- What specific contractual obligations were prevented;
- Why those obligations could not be performed; and
- How that inability is causally linked to the alleged force majeure event.
In practice, expert reports appointed by UAE courts will scrutinise this linkage closely. Where notices are vague, experts often conclude that causation has not been established, which in turn undermines entitlement at its core.
A recurring issue we see is that parties attempt to retrofit this level of detail at the claims stage. By that point, however, the evidential value of the original notice has already been lost.
Current Market Practice: A Misalignment
Against the backdrop of heightened disruption across international construction markets, there has been a marked increase in the volume of force majeure notices issued under FIDIC contracts. In the UAE, we frequently encounter notices that are issued quickly, but without the level of precision and contractual discipline required. Regrettably, however, many of these notices fall short of the contractual standard imposed by Sub-Clause 19.2.
In practice, the issue is not the absence of a force majeure event, but the manner in which it is notified. Notices are often drafted in broad, generic terms, failing to clearly identify the specific contractual obligations that have been, or will be, affected. This undermines their legal and evidential value at a critical stage.
Common deficiencies include:
- Reliance on standardised templates without project-specific analysis;
- Failure to identify specific activities or obligations affected;
- Lack of supporting documentation demonstrating actual prevention; and
- Treating the notice as a placeholder, with details to follow later.
This reflects a misunderstanding of what Sub-Clause 19.2 actually requires. It is not a preliminary alert. It demands a legally disciplined and project-specific analysis at the outset. To treat it otherwise is to misunderstand its function and, in many cases, to forfeit the very protection it was designed to provide.
This approach is particularly problematic in the UAE context, where disputes are largely decided based on documents rather than oral testimony. Under the UAE law of evidence (Federal Decree by Law No. (35) of 2022), Courts tend to rely heavily on what is recorded in writing at the time, and less on what is said after the fact. In this setting, a notice issued under Sub-Clause 19.2 is not just a procedural step, it becomes a key piece of evidence reflecting the party’s position at that point in time.
For that reason, any lack of clarity, detail, or accuracy in the notice can weaken the overall claim. In practice, it is often not the event itself that determines the outcome, but how well it was documented. A properly drafted notice can support and strengthen a claim, while a vague or generic one may significantly undermine it.
Further, there is a broader concern with reliance on generic templates taken from external sources or past matters. While templates can serve as a starting point, they cannot replace proper legal and commercial judgment based on the specific facts. The Contractual obligations are case-specific, and the notice must reflect that distinction.
The Continuity of Obligation: Not a One-Off Exercise
Another point that warrants emphasis is that Sub-Clause 19.2 is not discharged by a single notice issued at the onset of the force majeure event. In the UAE context, particularly on complex projects involving phased works or evolving disruptions, the impact of an event rarely remains static.
As the scope, duration, and consequences of the event develop, the notice obligation evolves accordingly. Courts and tribunals in the UAE expect to see a clear, contemporaneous record that reflects how the situation unfolded over time. A one-off notice is rarely sufficient. Ongoing updates, with increasing detail and clarity, are often critical to demonstrating both compliance with the contractual mechanism and the actual impact on performance.
The affected party is obliged to give such further notices as may be necessary to accurately reflect the developing impact of the force majeure event on its contractual obligations.
Issuing follow-up notices serves two key purposes:
- Maintaining the Contemporaneous Record: Regular, well-documented notices build a clear, real-time record of the event’s impact, one that carries significant weight if a dispute arises.
- Strengthening the Causal Narrative: Taken together, the notices tell the story of how the event unfolded and what it prevented, one that no single notice, however detailed, can tell on its own.
In practice, this requires coordination between legal, commercial, and project teams. Developments on site must be captured in real time, communicated through the appropriate contractual channels, and documented in a manner that is coherent, consistent, and able to withstand scrutiny at a later stage.
The Critical Link to Entitlement: Sub-Clause 19.4
Sub-Clause 19.2 cannot and should not be viewed in isolation. Its significance lies in its consideration alongside Sub-Clause 19.4, which governs the substantive consequences of a force majeure event, most importantly, the contractor’s entitlement to an extension of time and, in certain defined circumstances, to additional cost.
In UAE disputes, entitlement to time and cost is not assessed in isolation. It is assessed against the contractual framework and the contemporaneous record created under it.
In this regard, the notices issued under Sub-Clause 19.2 serve three indispensable functions in any downstream claim:
- They create a real-time record of disruption, captured as events unfolded, not pieced together afterwards;
- They connect the force majeure event to the specific impact claimed; a connection that must be established for any entitlement to arise; and
- They define the boundaries of the claim; what can be pursued, and on what factual and contractual basis.
The strength of a force majeure claim under Sub-Clause 19.4 is, in large measure, a function of the quality of the notices given under Sub-Clause 19.2. The two provisions must be approached as a unified legal and contractual framework.
Practical Observations from UAE Practice
From a practical standpoint, parties operating in the UAE under FIDIC contracts should approach Sub-Clause 19.2 with a level of discipline that reflects how disputes are actually determined in this jurisdiction.
Notices should be prepared with the expectation that they will be reviewed by a court-appointed expert or arbitral tribunal. They should align with the project programme, be supported by contemporaneous documents, and avoid generalised or exaggerated statements.
Equally, from an employer’s perspective, early scrutiny of such notices is critical. In many cases, engaging at the notice stage can prevent positions from becoming entrenched and escalating into formal disputes.
Sub-Clause 19
In our experience, many force majeure disagreements that proceeded to local courts or arbitration could have been contained at the notice stage had both sides engaged substantively from the outset.
A Broader Legal Perspective
In the UAE, FIDIC contracts operate within a wider statutory framework. The UAE Civil Transactions Law (Federal Law No. (5) of 1985, as amended) addresses force majeure, impossibility of performance, and relief from obligations due to events beyond a party’s control. Articles 273 and 249 of that Law are of particular relevance.
However, where parties have agreed on a detailed contractual framework, such as FIDIC, courts and arbitral tribunals will generally give priority to the contract. The agreed terms will govern the parties’ rights and obligations, while the law acts as a fallback only where the contract is unclear or silent.
That said, compliance with Sub-Clause 19.2 is not a procedural step; it is a substantive requirement. Failure to follow the contractual notice regime can undermine entitlement. Relying solely on statutory force majeure principles is, in most cases, insufficient.
Accordingly, Parties operating in the UAE, particularly on FIDIC-based projects, should ensure strict contractual compliance, supported by a clear understanding of the applicable legal framework.
Closing Reflection
Ultimately, Sub-Clause 19.2 is often underestimated. In reality, it is one of the most consequential provisions within the FIDIC force majeure regime.
In a market environment characterised by sustained and varied disruption, the quality of contractual administration at the notice stage can determine the trajectory, and ultimately the outcome, of the claim as a whole.
A notice that is clear, specific, well-evidenced, and properly aligned with the contractual and project record does more than preserve rights. It positions the affected party credibly and persuasively, whether in commercial negotiation, mediation, or formal proceedings. Conversely, a notice that is vague, generalised, or insufficiently documented may undermine a claim that is otherwise well-founded on the merits.
At a time when projects are operating under sustained pressure, precision in contract administration is no longer optional. It is essential.
Seek Legal Counsel
For further information or advice in relation to any of the matters addressed above, please feel free to contact Senior Partner, Areen Jayousi and Senior Associate, Hossam Elsafoury at Habib Al Mulla & Partners.
Disclaimer
The content provided in this article is intended for informational purposes only and does not constitute legal advice. While every effort has been made to ensure the accuracy and completeness of this information, the article does not offer a guarantee or warranty regarding its content. The matters discussed in this article are subject to interpretation, and legal outcomes may vary based on specific facts and circumstances. We recommend that readers seek individual legal counsel before making any decisions based on the information provided. If you require specific legal advice, please contact us directly.