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Clause 18: Exceptional Events: Written by Edward Corbett

The document discusses changes made to Clause 18, formerly known as Force Majeure, in FIDIC construction contracts. Key changes include replacing "Force Majeure" with "Exceptional Events" to avoid legal baggage, specifically listing strikes and lockouts, and clarifying that Clause 18 provides for either termination of the entire contract or relief from individual obligations if the clause is invoked due to an exceptional event. The document also analyzes aspects of Clause 18 that remained the same and questions whether some events truly qualify as exceptional.

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Nishant Singh
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347 views

Clause 18: Exceptional Events: Written by Edward Corbett

The document discusses changes made to Clause 18, formerly known as Force Majeure, in FIDIC construction contracts. Key changes include replacing "Force Majeure" with "Exceptional Events" to avoid legal baggage, specifically listing strikes and lockouts, and clarifying that Clause 18 provides for either termination of the entire contract or relief from individual obligations if the clause is invoked due to an exceptional event. The document also analyzes aspects of Clause 18 that remained the same and questions whether some events truly qualify as exceptional.

Uploaded by

Nishant Singh
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PDF, TXT or read online on Scribd
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Clause 18: Exceptional Events

Written by Edward Corbett 1

“Exceptional Events” has replaced “Force contractor of individual obligations that were
Majeure” and the provision is now clause 18 legally or physically impossible; or only of the
rather than clause 19 but otherwise little has Contract as a whole. It seems clearer that this is an
changed. all-or-nothing clause: if it is invoked, the result is
termination of the Contract.
FIDIC appear to have decided that the term “force
majeure” brought with it too much baggage for
those using it in civil law jurisdictions. Many users Article Author
have pre-conceptions about what force majeure is Edward Corbett 2
and is not and perhaps did not consider what
FIDIC meant by the term. With the new term, users
should approach the provision with a more open
mind.

One result of the change in term is that the word


“exceptional” no longer features in the definition:
Force Majeure meant an exceptional event or
circumstance. Of course, it would seem perverse to Email: edward.corbett@corbett.co.uk
argue that an Exceptional Event did not have to be
exceptional; but it is also true that a defined term
means what it is said to mean, not whatever the
chosen term implies.

One improvement introduced into 18.1 is that


strikes and lockouts have been separated out. As
these might properly be regarded as the most
common form of event that entitle the Contractor
to both time and money, it is right that they are not
buried in the more exotic “riot” item.

The anomaly of having a list of events, all of which


give rise to time and money except for one remains.
The natural catastrophes item is still on the list.
Was there any real doubt that earthquakes,
tsunamis, volcanic activity, hurricanes and
typhoons were force majeure?

Clause 18.6 is Release from Performance under the


Law. The question in relation to the equivalent
clause of the 1999 form was whether it relieved a

1
Edward Corbett is a Director at Corbett & Co. International Construction Lawyers Ltd. He can be contacted at edward.corbett@corbett.co.uk
2
The contents of this article should not be treated as legal advice. Please contact the lawyers at Corbett & Co before acting on or relying upon anything stated
in this article.

Tel: + 44 (0)20 8614 6200


Fax: + 44 (0)20 8614 6222
Email: info@corbett.co.uk
1
ExceptionalEvents/EC/2018(1)/18/CLAL www.corbett.co.uk

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