Many of the international construction projects that we have been advising on since February this year have been impacted to varying extents and at different times by a range of COVID-19 related matters, including personnel on sick or isolation leave, governmental or local authority travel restrictions including tighter visa requirements and quarantine rules, factory closures, border closures and export restrictions. Some contractors have repatriated site personnel back to their home country out of fears for their health and safety, whether in accordance with their government’s recommendations or simply following their corporate health and safety policies.
Invariably the focus is initially on whether force majeure relief applies. Under English law, force majeure is a creature of contract, not law, so the application of relief will depend on the precise wording of the contract as applied to the facts.
Where contracts are based on the FIDIC forms, however, while the temptation may be to head straight for the Force Majeure clause at Sub-Clause 19 (termed “Exceptional Events” at SC18 in the 2017 edition), there are a number of other likely candidates that also need to be considered. They all provide varying degrees of protection, but only Force Majeure entitles a party to terminate the Contract for prolonged Force Majeure. It is therefore important to undertake a careful analysis of the facts and the contract terms to ensure that claims are legally sound.
Emma Schaafsma looks at the points for consideration in her article here.
[show_profile name='Emma' surname='Schaafsma' jobtitle='Partner, Dispute Resolution' phone='+44 20 7466 2597']
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The articles published on this website, current at the dates of publication set out above, are for reference purposes only. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action.