Gazprom and others – force majeure for State-owned Enterprises? The Interplay of State Responsibility under Public International Law, International Economic Law and Private Commercial Law

Abstract

Force majeure is a recognized excuse from performance of contractual obligations in national legal systems and in the UN Convention on Contracts for the International Sale of Goods (CISG), as well as a regular component of international commercial/ supply contracts. Energy supply contracts also often contain such clauses. Current-ly, such contractual clauses are of interest with regard to the suspension of gas de-liveries from Russia by the Russian state-owned company Gazprom. It is recognized in national court and international arbitration practice that, apart from special exceptional situations, state-owned enterprises can also invoke force majeure, even if the event triggering the force majeure is the responsibility of the state, which is the sole or majority shareholder of the state-owned enterprise. This jurisprudence is in line with the strict separation of state and state-owned enterprise as recognized, inter alia, in public international law on state responsibility, in international investment protection law and in WTO law. However, there is increasing criticism of this approach and more and more international regulatory efforts that relativize the strict separation thesis. This may also have an impact on the interpretation of force majeure clauses.