What Qualifies as a Force Majeure Event Under FIDIC?

I was recently contacted for some advice on a claim that a contractor had received based on force majeure on a contract under the FIDIC Yellow Book. My advice may be summarised as follows and is also applicable to the 1999 FIDIC Red Book:

To qualify as a force majeure event, the event or circumstance needs to tick all the boxes defined in Sub-Clause 19.1 (Definition of Force Majeure), which lists the following criteria:

Beyond a Party’s control;

The Party could have not reasonably anticipated;

The Party could not have reasonably avoided;

Which is not substantially attributable to the other Party.

The sub-clause then lists examples of types of exceptional event or circumstances that should be considered as force majeure. The list includes war, hostilities, rebellion, disorder and natural catastrophes and several other circumstances. The list is not definitive and provided that an event is of a similar nature, it should qualify.

Other sub-clauses that require attention:

Sub-Clause 19.2 (Notice of Force Majeure) requires the party to give notice within 14 days.

Sub-Clause 19.4 (Consequences of Force Majeure) provides that, if notice has been given, the Contractor may claim for an extension of time if the Time for Completion will be delayed and the payment of any Cost for some, but not all circumstances. This sub-clause refers back to Sub-Clause 19.1 (Definition of Force Majeure) for the types of event under which Cost may be claimed.

This blog was written by ICCP Executive Officer and Fellow, Andy Hewitt.

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