Non-performance doctrines and Regulation 2026/261 - Contractual remedies in the context of the EU Regulation phasing out Russian gas imports

Sammanfattning

Regulation 2026/261 is an economic sanction package banning imports of natural gas from the Russian Federation into the European Union. Given that there are many long-term gas supply agreements between EU importers and Russian exporters, the Regulation creates a legal problem: parties can no longer perform their contractual obligations, yet the applicable law may not offer them a clear exit route. This thesis examines whether the non-performance doctrines of force majeure, hardship, and frustration can serve as grounds for excusing non-performance under English law and international contract law. The thesis finds that none of the three doctrines is available to parties affected by the Regulation. The doctrine of force majeure fails because the phase-out period had already been announced to companies since March 2022, making the unforeseeability and unavoidability criteria impossible to satisfy. The doctrine of hardship is also unavailable because the Regulation makes any adjusted or new contracts entirely unlawful. The doctrine of frustration under English law fails for the same foreseeability reasons, and additionally because the phase-out exemptions under Article 4 keep performance lawful throughout the phase-out period.