From shock to strategy: disputes in an era of geopolitical crises

A major geopolitical shock does not, by itself, create a successful commercial claim against a counter party. Between the event and any recovery sits a chain of questions about contractual triggers, causation, the counterfactual and mitigation. Economic evidence can shape the answer at every step, not only when it comes to quantifying harm or loss. 

That was a central theme of our panel at Berlin Dispute Resolution Days 2026, where we were joined by Mia Ramb of Busse Disputes, Vít Stehlík of White & Case and Fabian Huß of Bayer AG. With private practice, in-house and economic perspectives on the panel, we traced the journey from geopolitical shock to dispute, and what it means for how the next generation of contracts is written. 

The backdrop is familiar. Since 2020, businesses have faced a pandemic, war, energy price volatility, sanctions, trade disruption and rapid policy intervention. Companies have always contracted under uncertainty. What has changed is how often shocks now arrive and how they interact, quickly pushing outcomes far from the assumptions on which a contract was signed or an investment made. 

Key takeaways 

• A shock alone doesn't make a claim. The contractual trigger, causation, counterfactual and mitigation all have to hold. 

• Bring economics in early. It can shape liability, not just quantum, and early analysis doesn't need to take the form of a full expert report. 

• Volatility may widen what counts as foreseeable. Revisit how new contracts allocate risks once treated as remote. 

• Keep a contemporaneous record. Forecasts, decisions and mitigation steps documented at the time are often the evidence that decides the case. 

Below, we set out the questions that matter, why economics should come in earlier than it often does, and the practical steps businesses can take before positions harden. 

A shock is only the beginning

There is a chain of questions that needs to be worked through.  

1. What happened, and how material was it? The scale and duration of the event, measured against the conditions the parties contracted on. 

2. Does it qualify under the contract? Whether the event meets a relevant trigger or threshold, such as hardship, force majeure or price review, or instead falls within the risks the affected party accepted when signing the contract. 

3. What did it actually cause? Which consequences flow from the qualifying event, as opposed to other developments. 

4. What would have happened anyway? The counterfactual: where the business would have been without the shock. 

5. What mitigation could reasonably be expected? What the parties could, and should, have done in response. 

Working through this chain becomes harder when several shocks overlap, particularly where some qualify under the contract and others do not. It becomes harder still when those events interact and reinforce one another. Separating trigger events, events that derive from those that do not qualify is often decisive for both causation and damages. 

Think holistically: economics does not start with quantum

This is also why we think it is important not to view economics simply as a quantitative calculation performed at the end of a dispute. To the opposite: economic evidence can be relevant and helpful at much earlier stages and throughout the logical chain of a claim. 

Where a contract contains a hardship threshold, price-review mechanism or another economically defined trigger, analysis of market conditions and materiality can affect questions of contractual liability itself. Economic analysis can also help distinguish competing causes, test what businesses reasonably expected and construct the counterfactual against which actual outcomes and losses are assessed. 

For businesses and their advisers, there is therefore value in thinking about these questions holistically and before positions become entrenched. On top, this may also yield savings in time and budget, as early economic analysis does not necessarily need to be presented in final expert report shape, enabling a fast economics fact discovery.  

Preparing for uncertainty without using hindsight

Repeated shocks raise a harder question for the next generation of contracts. If disruption becomes the norm, what can a business still say it could not have anticipated? 

The more volatility parties have lived through, the wider the range of outcomes that may be regarded as foreseeable when they sign the next contract. Consider two otherwise identical long-term supply contracts, one signed in 2019 and one in 2024. While previously experienced energy price volatility was always to be expected, an energy price spike on the scale of 2022 may have been a genuine surprise for the parties to the first. For the second, a counterparty may argue that both sides had just been through a shock of comparable magnitude and should have planned for another. 

That has consequences at the negotiating table. Risks once treated as remote may need explicit allocation. Hardship, force majeure and price-review thresholds are likely to be scrutinised more closely. Businesses may also reconsider which risks they hedge, diversify or consciously leave exposed. 

It also has consequences for how disputes are argued. Disputes are often assessed after the event, which creates a constant pull towards hindsight. Where expectations at signature matter, they should be judged from that contemporaneous perspective. The question is what could reasonably have been expected about prices, financing or demand at the time, not what later became known. 

This makes contemporaneous evidence particularly valuable. Forecasts, investment papers, procurement decisions, hedging strategies and risk assessments can show both what a company expected and why its decisions were reasonable when it made them. 

Mitigation may need to evolve with events  

The treatment of mitigation is different. While expectations at signature should not be rewritten with hindsight, the response to a shock whilst a contract is being performed may reasonably need to evolve as events unfold. The fact that a mitigating action was unnecessary when the contract was signed does not automatically mean it remained unnecessary later. 

Even here, hindsight must be avoided. A mitigation strategy that looks obvious after a crisis may not have been feasible, proportionate or commercially sensible on the information available at the time. 

A critical question may be how quickly it was reasonable to expect a party to identify and implement mitigating measures. Contractual terms, including industry-practice provisions, may help inform that assessment.

Practical lessons: prepare before positions harden 

• Preserve the evidence and the decision trail. Secure contemporaneous forecasts, investment papers, procurement and hedging records, risk assessments and key correspondence throughout the life of the contract. Just as important, record why significant decisions were taken, what alternatives were considered and what information was available at the time. Institutional knowledge can disappear quickly as teams change. 

• Build the causal story early and across disciplines. Commercial teams, counsel, economists and other experts should work from a common chronology and test how the contractual trigger, allocation of risk, factual evidence, competing causes, counterfactual, mitigation and loss fit together. This can expose evidential gaps and inconsistencies before positions harden, rather than trying to reconstruct a coherent case only once proceedings have begun. 

• Document the response as the shock evolves. Reassess mitigation and commercial options as new information emerges, and keep a contemporaneous record of what was feasible, proportionate and why. That record can be critical to showing that decisions which may later look sub-optimal were reasonable on the information available at the time. 

• Keep commercial resolution options open, while remaining dispute-ready. Negotiation, mediation or other consensual routes may preserve value and commercial relationships, but they work best when the factual, legal and economic basis of the case is being developed in parallel. If consensual resolution proves unworkable, the parties are then better prepared for formal proceedings; and settlement can remain an option throughout. 

Moving from reaction to preparedness

The next geopolitical crisis may look very different from the last one. The commercial and evidential questions it creates, however, are becoming more familiar. 

For us, that is the important shift from shock to strategy. 

Businesses do not need to predict the next crisis perfectly. But they can examine how their contracts allocate risk, how decisions are documented, what mitigation might reasonably be available and how they would distinguish the effect of one disruption from the many other forces affecting their performance. 

For lawyers and economists advising on disputes, it also means engaging with each other earlier. Contract interpretation, causation, counterfactual analysis, mitigation and quantum are not isolated stages. In increasingly volatile markets, they are closely connected. 

Preparing for those connections before the next shock can put businesses in a stronger position when commercial disruption becomes a legal dispute.