The Court of Appeal confirmed that a borrower under a Tier 2 facility agreement was excused from making payments because of the risk of U.S. secondary sanctions.
The court made it explicitly clear that whether or not non-performance may be excused will depend on the specific words of the affected contract and the wider context. However, whilst fact sensitive, the decision also makes clear that the English court is likely to consider U.S. secondary sanctions as “mandatory” provisions of law.
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