for preview :
http://contracts.onecle.com/concord-efs/atlantic.agency.2002.07.12.shtml

some of the content i cut/paste for further discussion...

3.4. Construction Force Majeure Events. If a Construction Force Majeure Event that results in, or could reasonably be expected to result in, a Force Majeure Loss (including any losses that result from a Construction Force Majeure Event that prevents, or could reasonably be expected to prevent, the Construction Agent from completing Construction prior to the Scheduled Construction Termination Date) occurs, the Construction Agent shall promptly provide the Lessor with written notice thereof within ten (10) Business Days of the Construction Agent’s knowledge of the occurrence thereof (the “Construction Force Majeure Declaration”). Upon receipt of the Construction Force Majeure Declaration, Lessor and the Construction Agent shall consult with each other as to what steps, if any, are to be taken to remediate such Construction Force Majeure Event, including consulting as to the appropriateness of an extension of the Scheduled Construction Termination Date. The Construction Agent shall take all reasonable and practical steps to minimize the disruption of the construction process and all steps reasonably necessary to prevent further damage arising from such Construction Force Majeure Event. The Construction Agent shall be entitled to reimbursement from Lessor for any costs
directly related to minimizing the disruption and to preventing further damage of such Construction Force Majeure Event through the proceeds of Fundings pursuant to, and subject to the terms and conditions of, the Master Agreement. The Construction Agent shall, within thirty (30) days of the delivery of the Construction Force Majeure Declaration, submit to the Lessor a budget detailing the costs that would be incurred in remediating such Construction Force Majeure Event and a schedule for effecting the same. The Construction Agent will commence such remediation only upon receipt of written authorization from the Lessor to do so, which authorization (or denial thereof) shall be given by written notice to Construction Agent not later than fifteen (15) Business Days after Lessor’s receipt of the budget referred to in the preceding sentence. The Lessor in its sole discretion may elect to continue Construction and make Advances for such remediation or terminate this Agreement with respect to the affected Leased Property. If the Lessor elects to terminate this Agreement with respect to the affected Leased Property, subject to Construction Agent’s right to purchase such Leased Property in accordance with Section 5.5 hereof, the Construction Agent shall within thirty (30) days of receipt of written notice of termination return the affected Leased Property to the Lessor in accordance with the procedures set forth in Section 5.6.

In the event the Lessor elects to continue Construction after receipt of a Construction Force Majeure Declaration, the Lessor shall make available to the Construction Agent, so long as no Construction Agency Event of Default shall have occurred and be continuing, all insurance proceeds payable to the Lessor with respect to such event to the extent necessary to remediate such event.

Planner,

How long or otherwise the threat of terrorism remains is not important unless you believe that security restrictions will be lifted if the state believes there to be no longer a threat - if the UK is anything to go by, the increased security restrictions to get into the country are here to stay, perceived threat or not.

I can’t think of any paper at the moment about the labor situation, the most important peice of paper you already have - the contract.

So back to the contract, is state intervention or similar mentioned as a FM or in any other clause? Is there a clause (usually is) requiring compliance with state rules and regulations, etc and therefore the compliance is causing the delay whether FM or not?

The plot thickens!!!!!

Planner,

The further information is interesting and possibly very important - was it the actual act of terrorism or the subsequent security restrictions (which I assume is state intervention) that has caused the problem?

From what you stated it would appear to be the state intervention - which may be in the FM clause.

Also, there may be other clauses relating specifically to the supply of labour which may be of interest - I saw one recently from the Middle East in which the contractor warranted to have sufficient labour, staff, etc to do the job. If so, there may be other contractual considerations that strenghten / weaken the arguement.

All,

In English law, terrorism may be a cause of FM, the questions in this thread that need answering are:

1. Is it also the case in Egypt?
2. If the contract expressly states a list of events that are FM, is this list the only allowable causes of FM or can any event ’beyond the control of the parties’ also qualify under Egyptian law.

For an answer I suggest you go and ask an Egyptian lawyer.

If you were in the UK and the areas abit grey, you can ask the courts for a ’summary judgement’ on a point of law. This process is usually quite quick and would give you an undisputable answer.

Hi Bill,

That is a simplistic view of FM.

And because it is simplistic, it may not be applicable because it could be subject to abuse or conspiracy. Take note that while contract involve parties signatory to the contract, the operability of the contract is still subject to the law of the state.

I just have this instinct that the paarticular event that started the thread does not qualify for FM

Best regards,

Shahzad point i was trying to make is that the actual cause, not relative to the reason is fm. some pp members were getting off to the tangent if man made or act of god, etc etc. no matter what the cause, as long as its out of the control of both parties qualifies it as a fm issue
bill

Bill, not only you mostly others members of this forum are of the same opinion that is "beyond control of the parties = fm"

Guys,

Black’s Law Dictionary defined Force Majeure as "that part of a contract which cannot be performed due to causes which are outside the control of the parties and could not be avoided by the exercise of due care."

This includes an "act of God" which is defined as "an act, event, happening, or occurrence, due to natural causes and inevitable accident, or disaster; a natural and inevitable necessity which implies entire exclusion of all human agency which operates without interference or aid from man and which results from natural causes and is in no sense attributable to human agency."

This clause states that the parties shall not be liable for failure to perform its obligations under the agreement due to causes out of their control and is based on the concept that parties to an agreement desire to protect themselves from risks posed by unpredictable events.

The following sample clause specifically mentions the possibilities of mechanical, electronic, or communications failure, which are particularly important in the electronic age:-
No party shall be liable for any failure to perform its obligations in connection with any action described in this Agreement, if such failure results from any act of God, riot, war, civil unrest, flood, earthquake, or other cause beyond such party’s reasonable control (including any mechanical, electronic, or communications failure, but excluding failure caused by a party’s financial condition or negligence).

Regards.

Hi Guys,
I was thinking, is it to enforce "Force Majeure" as simple as that...? Who will make a decision(Goverment, Court or Client for the project) for that situation is "Force Majeure or what?

Hello Andrew,

Thanks a lot. I changed my perspective.

A lot of country follow the English Law.

So this answer the question: Act of Terrorism constitute :Force Majeure.

Wish you all the best.

All,

And another one just found: Advice on UK based law but again it will depend on the exact wording of the contract:

FORCE MAJEURE......

In considering force majeure provisions the Parties may wish to be more specific than simply referring to "circumstances beyond the control" of a Party to avoid debate as to what circumstances are in fact beyond the control of the party claiming relief; the usual matters which the Parties might define as being events of force majeure are:
(i) Act of God including tempest, fire, or natural disaster;
(ii) War, civil war, sabotage or act of terrorism;

Stewart, not splitting hairs, agree, tis the contract that defines FM, however WHO WRITES THE TENDER PACKAGE THAT LATER BECOMES THE CONTRACT PACKAGE, THE COMPANY, OWNER CLIENT WHATEVER title you give it. Thus the company inserts its own defination of FM.

And really what does it mean ???? To me most times used is for a act, beyond the control of the party of both parts, act of god, man, monkeys snow, whatever, if the parties have no control over it, then you are in a Force majeure Area.

Cheers Bill

Charleston,

You could well be right but terrorism is not new - here in the UK terrorism struck recently, but only ashort while ago the IRA was bombing mainland UK on a fairly regular basis for the best part of 20 years. Spain - ETA, ongoing although recently quite, etc, etc all over the world.

Terrorism is not therefore a recent thing, it’s been with us now for many many years but not in a strategic global scale now encountered.

I agreed with andrew,
Sometimes Client and Contractors do "Butter Trades" to solve the problem.

Agreed, Andrew.

Isn’t that why we have Contracts in the first place? ;-)

Stuart

www.rosmartin.com

Bill,

I would not suggest that it is a case of "Every firm has [its] own [definition] of FM."

It is the Contract that defines Force Majeure, and this is a reflection and confirmation of the Parties’ mutual agreement to such definition, whatever it may be. ;-)

Stuart

www.rosmartin.com

Philip,

The definition of Force Majeure is very simple: it is what the Contract says it is!! Nothing more; nothing less.

Stuart

www.rosmartin.com

Hi guys,

I have just briefly read the postings, but have found no actual references to a case of force majeure, and find difficulty with understanding what the discussion is about? "Force Majuere" is circumstances beyond your control, and should not be confused with "Acts of God".
What is force majeure? and an Act of God?
FM is an act within human control, such as a strike, and AoG something like an earthquake or simular.

Hi Guys,
I got some question here,
1.If the situation is critical ...maybe at that time the vendor / supplier / transpotation and the contractor will raise the cost rate, in terms of budget its out of range. Who will bare the cost.

Basically, under resources is not a client/consultants worry. It is contractor’s sole responsibilities. Contractor shall plan ahead and met the target completion date. What the contractor must do is arrange for additional resources and mobilize them to site as soon as possible.

Calculate the loss time and prepare a schedule for EOT. However, it is subject to client/consultants approval. If EOT not approved contractor shall prepare a recovery schedule to meet the target completion date together with acceleration cost. Again the acceleration cost is subject to client/consultants approval and the contractor must justify it with all the supporting documents.

Regards.

Check the contract first. Force Majeure delays are excusable but non-compensable and are sometimes defined as the delays beyond the Contractor’s control, either weather, fire, labor disputes, etc. The Contractor should get a time extension for that part, but no extended overhead.

Since the project was behind the schedule prior to the event that part should be treated differently. Total delay after the event should be divided into two portions, first one is the delay before the event and whoever is responsible for that should pay for the recovery.
I would make a presentation to the owner, request for time extension, for the Force Majeure part include all details, contract requirements, CPM schedule files, projected impact on the available labor force, etc. When you quantify the delay then you can make a next step and make a proposal for “acceleration”/recovery schedule one or more options. The owner will have the enough information to grant you a time extension (or deny it if he disagrees) and also the price tag to keep the original Substantial Completion date.

Hello,
Just my idea.

I dont think this is force majeure since generally, force majeure is an act of nature whereas this is an act by men. The best to do is to tighten security and to give assurance that nothing of this sort will happen. Within the jobsite, additional security measure must be in place to project confidence that this will not happen in the worksite.

Regards,

To no name in egypt.

OK SO NOW a situation exist whereas party of the first part has claimed FORCE MAJEURE. This identifies a sit rep whereas he feels entitled to a extension of time as a direct result of something that has impacted his project that was beyond his control. Now to deal with it.

The job must proceed, and the contactor should submit a recovery schedule on how he proposes to catch up,or the client should extend the time for completion. One of the other.
It goes without saying, if the contractor submits a recovery program, it will have a price tag on it. (example to work a night shift).
And now that the schedule issue is known, its only a matter of agreeing on the price for this recovery or not.

hope this helps, bill

its quiet intresting, i also like to know about it. may be i can add additional question ...is there a clause in the contract like this situation(very critical condition).