Navigating cross-border disputes amid geopolitical instability

Periods of geopolitical tension have long reshaped global commerce, but today's interconnected economy is making their impact on cross-border disputes more immediate and far-reaching. In this guest blog for ICC, Nasser Al-Adba, Founder and Managing Director of Omani & Partners, sponsor of the 11th ICC APAC Conference on International Arbitration, examines how arbitration can help businesses navigate conflict-driven uncertainty, manage legal and regulatory risk and preserve commercial value.

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Historically, periods of geopolitical tension have shaped global commerce. However, in today's interconnected economy, the impact of conflict on cross-border disputes is more immediate, complex and far-reaching than ever before.

The current tensions in the Middle East have not only influenced regional stability, but are also disrupting supply chains, altering investment flows and creating new layers of legal and regulatory risk for businesses operating across jurisdictions.

In this environment, arbitration has become more than a dispute resolution mechanism - it is a critical tool for managing uncertainty, preserving commercial relationships and safeguarding value.

The intersection of conflict and commercial risk

Geopolitical instability rarely manifests as a single, isolated issue. Instead, it triggers a cascade of commercial and legal challenges, including:

• Disruption of contractual performance due to supply chain breakdowns;
• Increased reliance on force majeure and hardship provisions;
• Sanctions, trade restrictions and compliance risks;
• Currency volatility and payment disruptions;
• Heightened counterparty risk and insolvency exposure.

For businesses with operations in or ties to affected regions, disputes are often unavoidable, but their nature is evolving.

Claims are becoming more complex, frequently involving overlapping legal regimes, competing jurisdictions and broader geopolitical considerations.

Arbitration as a neutral and resilient framework

In times of conflict, the neutrality and flexibility of arbitration become particularly valuable.

Unlike domestic litigation, arbitration offers:

• A neutral forum, independent of local political or judicial pressures;
• Procedural adaptability to accommodate disruption (including remote proceedings);
• Greater confidentiality in sensitive commercial matters;
• A framework for enforceability across multiple jurisdictions.

This is especially important where disputes involve parties from different regions or where reliance on local courts may be impractical or uncertain.

Arbitration provides a level of continuity and predictability in an otherwise volatile environment.

Force majeure, hardship and contractual interpretation

One of the most immediate legal impacts of geopolitical conflict is the invocation of force majeure and hardship clauses.

However, these provisions are rarely straightforward.

Key considerations include:

• Whether the triggering event falls within the contractual definition of force majeure;
• The extent to which performance has been prevented or merely made more difficult;
• Obligations to mitigate loss or pursue alternative performance;
• The governing law's approach to contractual interpretation.

In arbitration, these issues are assessed with a high degree of factual and legal scrutiny, often requiring detailed evidence of causation, impact and commercial context.

As a result, outcomes can vary significantly depending on how contracts have been drafted and structured.

Sanctions, compliance and procedural complexity

The expansion of sanctions regimes and regulatory measures has introduced additional layers of complexity into cross-border disputes.

Arbitration proceedings may now need to address:

• The legality of transactions under evolving sanctions frameworks;
• Restrictions on payments, transfers or enforcement;
• The role of financial institutions in facilitating or blocking transactions;
• Risks associated with counterparties operating in sanctioned or high-risk jurisdictions.

These factors can affect not only the merits of a dispute, but also the ability to conduct proceedings and enforce awards.

Enforcement in a fragmented environment

In periods of geopolitical instability, enforcement becomes even more critical and challenging.

Courts may adopt more cautious or restrictive approaches, particularly where public policy considerations or sanctions are involved.

Accordingly, parties must:

• Anticipate enforcement challenges across multiple jurisdictions;
• Structure claims with asset tracing and recovery in mind;
• Align arbitration strategy with enforcement realities from the outset.

An award obtained in a favourable forum may still face obstacles if enforcement is sought in a jurisdiction affected by political or regulatory sensitivities.

Strategic responses in an uncertain landscape

Leading organisations are responding to these challenges by adopting more integrated and forward-looking dispute strategies:

1. Risk-conscious contracting

Contracts are being drafted with greater emphasis on:

• Clear force majeure and hardship provisions;
• Flexible dispute resolution mechanisms;
• Alignment between contractual obligations and external risk factors.

2. Scenario planning

Businesses are proactively assessing:

• Potential dispute triggers;
• Jurisdictional exposure;
• Counterparty resilience.

3. Multi-jurisdictional coordination

Disputes are managed through coordinated efforts between:

• International arbitration counsel;
• Local legal experts;
• Compliance and regulatory specialists.

4. Enforcement-led thinking

An increasing focus on:

• Asset location and recovery pathways;
• Jurisdictional enforceability;
• Practical outcomes beyond the award.

5. Maintaining accurate documentation of transactions and communications
In a conflict-driven environment, clear and comprehensive documentation is critical in supporting claims and defending positions in arbitration.

Businesses should ensure:

• Consistent recording of all contractual performance, delays and disruptions as they occur;
• Preservation of correspondence (emails, notices, meeting records) to evidence intent and communication between parties;
• Proper documentation of any force majeure or hardship notifications, including timing and compliance with contractual requirements;
• Tracking of financial transactions, payment delays and any restrictions arising from sanctions or regulatory measures;
• Maintenance of internal records demonstrating mitigation efforts and decision-making processes.

Emerging trends in conflict-driven arbitration

The current environment is accelerating several key trends:

• Increased reliance on arbitration in high-risk jurisdictions;
• Greater use of interim and emergency relief mechanisms;
• Expansion of third-party funding in complex disputes;
• Heightened importance of compliance and due diligence in arbitration strategy.

These developments reflect a broader shift towards more sophisticated, risk-aware approaches to dispute resolution.

Conclusion

Geopolitical tensions are reshaping the landscape of cross-border disputes, introducing new risks, new complexities and new strategic considerations.

In this environment, arbitration remains one of the most effective tools for navigating uncertainty.

However, its effectiveness depends on how it is used.

For businesses operating across borders, success requires:

• Anticipating risk at the contractual stage;
• Structuring disputes with enforcement in mind;
• Aligning legal strategy with commercial realities.

In times of conflict, arbitration is not simply about resolving disputes - it is about preserving stability, protecting value and enabling continuity in an increasingly uncertain world.

Disclaimer: The content of this article may not reflect the official views of the International Chamber of Commerce. The opinions expressed are solely those of the authors and other contributors.