Professional Documents
Culture Documents
Jeremy Glover
Force Majeure: a common law definition An act of God or force majeure clause, generally operates to discharge a contracting party when a supervening, sometimes supernatural, event, beyond the control of either party, makes performance impossible. The common thread is that of the unexpected, something beyond reasonable human foresight and skill.
Dickson J Atlantic Paper Stock Ltd v St Anne-Nackawic Pulp and Paper Co
FIDIC: Force Majeure/Exceptional Events FIDIC defines force majeure or an exceptional event as an event: which is beyond a Partys control, which such Party could not reasonably have provided against before entering into the Contract, which, having arisen, such Party could not reasonably have avoided or overcome, and which is not substantially attributable to the other Party.
Sub-clause 19.1 (Red Book), Sub-Clause 1.1.37 (Gold Book)
"The oral and written testimonies of the experts on Libyan law submitted on this subject as well as a careful examination of the Latsis case leave no doubt as to the fact that, under Libyan Civil Law, the impossibility must not be determined subjectively, i.e., by reference to the capabilities and personal means available to the defaulting obligor but rather objectively. It is because of such meaning that the impossibility is said to be 'absolute' . . .
Force Majeure: the common law The force majeure event has to have caused Total to be unable to carry out its obligations under the [agreement]. [] Total is unable to carry out that obligation if some event has occurred as a result of which it cannot do that. The fact that it is much more expensive, even greatly more expensive for it to do so, does not mean that it cannot do so. Clarke J
Thames Valley Power Ltd v Total Gas & Power Ltd
Claims management
Stage 1: Contract Review; Stage 2: Identify the claim; Stage 3: Notices and correspondence; Stage 4: Identification of relevant facts and supporting evidence; Stage 5: Early assessment of quantum and prospects; Stage 6: Resolving the claim
If a Party is or will be prevented from performing any of its obligations under the Contract due to an Exceptional Event, then it shall give Notice to the other Party of such event or circumstance and shall specify the obligations, the performance of which is or will be prevented. The Notice shall be given within 14 days after the Party become aware, or should have become aware, of the event or circumstance constituting an Exceptional Event.
With respect to contemporary records all clause 20.1 requires is that the contractor keep and have available for inspection by the Engineer these records. The clause, in my opinion, is clear, a failure by a contractor to keep such records does not prevent recovery on the claim but is to be taken into account in its assessment insofar as it may have prejudiced or prevented a proper investigation of the claim.
Sub-clause 20.1 of the 1999 FIDIC Form Judge Jones National Insurance Property Development Co. Ltd v NH International (Caribbean) Ltd
Dispute escalation
Many FIDIC contracts have the DAB provisions deleted or an alternative substituted; Pre-conditions to arbitration can deprive the Tribunal of jurisdiction; The need for certainty under English law: Sulamerica v Enesa Engenharia; What if a party cannot fulfil those contract requirements?
Conclusions