V. Defining the Conditions for the Exceptions
Once the principle of excepting certain events from the basic risk allocation is…
The first of these approaches has been adopted, for instance in the UNIDROIT Pri…
Non-performance by a party is excused if that party proves that the non-performance…
In some provisions, the FIDIC Conditions rely on the general concept of impossibility.…
Safe in so far as it is legally or physically impossible …Sayfa 239…
In the Rainbow Suite the exemption is more refined; Clause 18.6 of the 2017 Red and…
With respect to most other risks the situation is more complex and the provisions in the FIDIC Conditions evolved over time. As explained the Conditions differ between risks to the Works under construction and other risks. With respect to the former, Clause 20 (2) of the 1957 edition defined Excepted Risks as…
The “excepted risks” are war hostilities (whether war be declared or not) invasion act of foreign enemies rebellion revolution insurrection or military or usurped power civil war or (otherwise than among the Contractor’s own employees) riot commotion or disorder or use or occupation by the Employer of any portion of the Works in respect of which a Certificate of Completion has been issued or at a cause solely due to the Engineer’s design of the Works or any such operation of the forces of nature as reasonable foresight and ability on the part of the Contractor could not foresee or reasonably provide against (all of which are hereby collectively referred to as “the excepted risks”).…
One notes, first of all, the absence of any comma, a particularity of some earlier…
The early FIDIC conditions provided in Clause 65 (1) a separate group of exceptions,…
The distinction between the two clauses, and the resulting overlap, was preserved,…
In the editions of the Red Book that followed that of 1957, the list of risks exempted in…
The editions of the Yellow Book, during the first generation, followed a similar…
and all risks which an experienced contractor could not have foreseen or, if foreseeable, against which measures to prevent loss, damage or injury from occurring could not reasonably have been taken by such contractor.The definition of Force Majeure in Clause 44 of that edition starts with the following…
Force Majeure means any circumstances beyond the control of the parties, including but not limited to…
This general definition is followed by the list of specific examples similar to that…
The continuing attempts for perfection in the expansion of the list of specific examples…
… ionising radiations or contamination by radio-activity from any nuclear fuel or from any nuclear waste from the combustion of nuclear fuel, radio-active toxic explosive, or other hazardous properties of any explosive, nuclear assembly or nuclear components thereof …
and …
pressure waves caused by aircraft or other aerial devices travelling at sonic or supersonic speeds.…
I.N. Duncan Wallace, one of the early commentators of the FIDIC Conditions and a…
A long list of esoteric risks associated with radio-activity and aircraft, which seem to have their origin in insurance salesmanship pressure rather than in any genuine consumer demand for such insurance ……
These wordy definitions of specific risks were preserved in the fourth edition of…
(e) encountering munitions of war, explosive materials, ionising radiation or contamination by radio activity, except as may be attributable to the Contractor’s use of such munitions, explosives, radiation or radio-activity.…
Apart from expanding and then streamlining the descriptive lists of specific risks,…
In the Rainbow Suite, FIDIC adopted clearly a combined approach, defining general…
The contract conditions of this new generation, contained in Clause 1.1.85 of the…
The provision which, in the 1999 edition, took the place of the clause defining Excepted…
The combined approach is fully developed in Clause 18.1 (“Exceptional Events”) of…
The first part describes the general principles that “an event or circumstance” must…
(v) is beyond a Party’s control,…
(vi) the Party could not reasonably have provided against before entering into the Contract;…
(vii) having arisen, such Party could not reasonably have avoided or overcome; and…
(viii) is not substantially attributable to the other Party.…
After this definition of the principles that must be met by an event to qualify as…
(e) war, hostilities (whether war be declared or not), invasion, act of foreign…
EN
TR
