COVID-19 IN LAW AND CONSTRUCTION CONTRACTS Webinar By Paola Kattar & Saad Hegazy Tuesday 7 April 2020 SPEAKERS PAOLA KATTAR AACE Qatar Section Communication Director Legal Manager at KEO International Consultants Paola is a trilingual Senior Legal Practitioner and Construction Claims Consultant with over 19 years’ experience. She started her career in 2000 as lawyer with international law firms in Lebanon then relocated to Qatar in 2008 with a major Claims and Project Management Company and provided legal and contracts consultancy and management for landmark projects where she obtained a wealth of construction contracts and project management experience. In 2014, she focused her career on claims and contracts risks and management. In 2019 she joined KEO International Consultants as Legal Manager for Kuwait, Qatar and Bahrain managing the legal, contracts and claims day to day matters for the company and projects and is based in KEO’s office in Doha. Throughout her working life, Paola has worked with renown contractors, employers and consultants on major developments and liaised with local and international legal counsels and technical experts and contributed in winning complex arbitration and litigation cases. She has vast experience in managing teams, preparing and assessing construction claims, managing day-to-day contractual and procurement operations, mediating and managing disputes avoidance, litigation and settlements. Paola has represented employers, consultants, contractors and subcontractors on major construction developments and disputes in and around GCC. 2 SPEAKERS SAAD HEGAZY, BSc.Eng, MSc, LLM, FCIArb, MRICS APEWA AACE Qatar Section Vice President Construction Dispute Consultant and Expert Witness Saad is a Delay Analysis Expert, Construction Claims and Dispute Management Expert who has 15 years’ experience in Forensic Planning, Construction Contracts, Claims and Disputes, with experience in a variety of industries and project types in GCC, Middle East, Asia, and Africa. Saad has a wealth of experience and knowledge having worked on airports, metro, infrastructure, Oil & Gas, water treatment, utilities and high rise buildings projects. His experience extends to arbitration; mediation and adjudication work with extensive involvement in the contractual and legal aspects of claims and contracts. Saad is ICC Young Arbitrators Forum Regional Representative for MENA (ICCYAF) , the head of Egyptian Delegation to ISO standard Committees for Project and Portfolio Management (ISO21500 & ISO21502) since 2009, Vice President at AACE Qatar Branch, and Education Sub-Committee Member at CIArb Qatar Branch for 2018, winner of IPMA Young Project Manager Excellence Prize 2010. is recognized as an international trainer and author in the field of Forensic Planning and Dispute resolutions. 3 COVID-19 IN LAW Paola Kattar Continued spread of Coronavirus COVID-19 is rapidly impacting Individuals and Organizations Directly: Quarantine Illness Death 5 Copyrights: HEGAZY & KATTAR 2020 Continued spread of Coronavirus COVID-19 is rapidly impacting Individuals and Organizations Indirectly through: Authorities Restrictive Measures Governmental Decrees – Directives - mandating shut down of public transport, restrictions then suspension of flights, limitation to working hours and partial curfew, partial or total closure of certain areas, etc. 6 Copyrights: HEGAZY & KATTAR 2020 You may be a business owner, employer, contractor, consultant, supplier, employee, individual or company. Are you impacted? COVID-19 impact on rights and obligations: 1. No impact 2. Overburdening debtor 3. Making the obligation impossible How to manage rights and obligations? You hear of the French-law derived doctrine of FORCE MAJEURE being blamed on COVID-19, or other expressions like: Act of Nature, Act of God, Unforeseeable Circumstance, Employer’s Risks, Physical impossibility – natural disasters, Legal impossibility - change of law, 7 Copyrights: HEGAZY & KATTAR 2020 HOW TO APPLY WHICH & WHEN TO COVID-19, IF AT ALL? LOTS OF QUESTIONS NO CLEAR ANSWERS EXTENT and IMPACT of COVID-19 REMAIN UNCLEAR and EVOLVING This Presentation will try to find contractual and legal guidance for managing your rights and obligations in the rise of COVID-19 8 Copyrights: HEGAZY & KATTAR 2020 CONTRACT & LAW GO HAND IN HAND Well-crafted contracts will have Itemized specific and clear force majeure events Prescribed the full implications for both parties In case of NO or INSUFFICIENT Force Majeure clause (if the provision of force majeure does not cover the COVID-19 direct or indirect implications) 9 Provisions of law can be invoked. In certain legislations, Force Majeure may be pursued by a party to a contract as a matter of law even without being expressly set out in the contract. In other legislations, Force Majeure’s is not a legal principle. Its applicability depends on the wordings of the contract and court precedents Jurisprudence. Copyrights: HEGAZY & KATTAR 2020 QATAR CIVIL CODE Law No. 22 / 2004 Article 171 If unforeseen general exceptional events occurred and caused the performance of the contractual obligation to become, although not impossible, but onerous for the obligee - threatening of a substantial loss, the judge will evaluate the circumstances, and both parties’ interests and may: restore the onerous obligation to a reasonable limit. Any agreement to the contrary shall be void. 10 Copyrights: HEGAZY & KATTAR 2020 QATAR CIVIL CODE Law No. 22 / 2004 Article 204 If a person proves that a loss was caused by external cause beyond the person's control such as force majeure, or unforeseen event, The person will not be compelled to pay damages, unless there is a stipulation to the contrary. 11 Copyrights: HEGAZY & KATTAR 2020 QATAR CIVIL CODE Law No. 22 / 2004 Article 256 If a debtor does not fulfil an obligation in kind, or is late in doing so, he will be required to compensate the creditor for his loss, unless he shows that the nonfulfilment or delay is the result of an external cause not of his making. 12 Copyrights: HEGAZY & KATTAR 2020 QATAR CIVIL CODE Law No. 22 / 2004 Articles 187 and 188 Automatic termination of Unilateral and Bilateral Obligations and contracts that become impossible due to external cause. In case of partial impossibility, the creditor may be required to perform the part of the obligation that can be fulfilled. 13 Copyrights: HEGAZY & KATTAR 2020 QATAR CIVIL CODE Law No. 22 / 2004 Article 402 An obligation will be extinguished if the debtor shows that performance has become impossible due to an external cause not of his making. 14 Copyrights: HEGAZY & KATTAR 2020 Qatar Law Takeaway Termination of obligation and contract in case of established impossibility to perform, due to force majeure. No payment of liquidated damages for delayed or nonfulfilled obligations as a result of force majeure. discretionary power of the judge or arbitrator to amend parties’ obligations in case of force majeure rendering the contract unfairly onerous to one or the parties. 15 Copyrights: HEGAZY & KATTAR 2020 KUWAIT CIVIL CODE Decree-Law No. 67/1980 Article 437 Termination of the obligation if the debtor proves that the fulfillment thereof has become impossible for him due to an external reason. Article 167 The Contract is invalid if it entails an impossible obligation. 16 16 Copyrights: HEGAZY & KATTAR 2020 KUWAIT CIVIL CODE Decree-Law No. 67/1980 Articles 214 and 215 Unilateral and Bilateral Obligations and contracts that become impossible due to external cause are deemed rescinded by statement of law. In case of partial impossibility, the creditor may be required to perform the part of the obligation that can be fulfilled. In Bilateral contracts the debtor may chose to request the partial implementation or rescinding the contract. 17 Copyrights: HEGAZY & KATTAR 2020 KUWAIT CIVIL CODE Decree-Law No. 67/1980 Takeaways Article 293 No compensation for damages caused by delayed performance or non-performance as a result of external reason. 18 Total or partial termination for impossibility due to force majeure. No compensation if damage or loss is caused by force majeure. Copyrights: HEGAZY & KATTAR 2020 BONUS Slide – Relevant Judgements by the Kuwait Court of Cassation Judgement in 2002: An obligation will terminate, only in case of absolute impossibility (legal or physical) of performance, by all and not just by the debtor due to his personal circumstances. Even when fulfillment of the obligation becomes burdensome for the debtor, the obligation cannot be considered impossible. 19 A decision in 2008 in interpretation of Article 437 of the Kuwaiti Civil Law: the obligation becomes obsolete if the debtor proves that its fulfillment has become impossible due to an external reason, beyond his control. Decision in 2008, in interpretation of Article 215 of the Kuwaiti Civil Law: Where timelines have been observed, but an event of force majeure occurred and caused the fulfilment of a contractual obligation to become impossible throughout the obligation term, the obligation shall terminate for reason of impossibility. However, if the impossibility is temporary and ceased at a time when the obligation could still be fulfilled for its intended purpose, then the obligation shall not terminate but be suspended until its fulfillment becomes possible again after the force majeure had ended. Copyrights: HEGAZY & KATTAR 2020 Oman Civil Transaction Law No. 29 / 2013 Article 172 If force majeure occurs rendering the performance of the obligation impossible, the obligation shall be terminated, and the contract automatically revoked. Where impossibility is partial, the corresponding obligation shall be extinguished. Where impossibility is temporary, the creditor may rescind the contract provided that a notice is served to the debtor. 20 Article 339 The Obligation shall be extinguished if the debtor proves that its fulfilment became impossible due to a foreign cause beyond his will. Copyrights: HEGAZY & KATTAR 2020 Oman Civil Transaction Law No. 29 / 2013 Article 159 If unforeseen general exceptional accidents cause the execution of contractual obligation, to become burdensome, although not impossible, threatening with serious loss, the court may, according to the circumstances and after balancing the interests of both parties, reduce the burdensome obligation to a reasonable limit. Article 177 If debtor proves that the damage is due to an external cause beyond the debtor control, he shall not be liable for compensation unless otherwise specified by the law or contract. (unlike Article 159, this condition can be altered by agreement) Agreement to the contrary is void. 21 Copyrights: HEGAZY & KATTAR 2020 Oman Civil Transaction Law No. 29 / 2013 Article 264 If it becomes impossible for the debtor to execute the specific obligation, a judgement for compensation shall be rendered against him for failure to fulfill his obligations unless it is proven that the impossibility of execution has arisen from a foreign cause beyond his will. The same judgment shall be rendered if the debtor delays the fulfilment of his obligation. 22 Copyrights: HEGAZY & KATTAR 2020 Oman Law Takeaways Termination of the obligation or contract for impossibility due to force majeure. Court’s discretionary power to adjust contractual obligations by reducing burdensome on one party caused by unforeseen general exceptional accident. Discretion restricted to “consideration of the circumstances and balancing interests”. No damages for loss caused by force majeure. No compensation for delayed or non-fulfilled obligation for impossibility due to force majeure. 23 Copyrights: HEGAZY & KATTAR 2020 BAHRAIN Civil Law No. 19 / 2001 Article 54 Refund of the Advance Payment, if the execution of the contract becomes impossible for reasons beyond the parties’ control. Article 145 Dissolution of the impossible obligation and of the reciprocal obligations – and rescindment of the contract by statement of law, if the impossibility is due to external reasons beyond the debtor’s control. If impossibility is partial the creditor may request partial execution or termination of the contract. 24 Copyrighst: HEGAZY & KATTAR 2020 BAHRAIN Civil Law No. 19 / 2001 Article 165 No compensation for damage caused by external event, sudden accident, force majeure, error by the injured or third party. Proof is required. Can be agreed otherwise by the parties to the contract. Article 216 No compensation for damage due to delay or failure to execute obligation as a result of force majeure beyond the debtor’s control. Proof is required. Article 364 (on impossibility) Dissolution of obligation in case of impossibility to perform due to foreign event. Proof is required. 25 Copyrights: HEGAZY & KATTAR 2020 BAHRAIN Civil Law No. 19 / 2001 Article 592 The contractor or supplier shall not be paid the price or the expenses of the damaged goods if the damage was caused by sudden accident or force majeure, prior to handover to the employer. For this scenario to apply, it should be established that the employer did not fail in its obligation to take over the goods. 26 Copyrights: HEGAZY & KATTAR 2020 BAHRAIN Civil Law No. 19 / 2001 Article 593 (about Employer’s risk) If the material provided by the employer to the contractor, for the purpose of the works is damaged or demolished by sudden accident or force majeure before the works are handover to the employer, the employer shall not claim back the value of the material from the Contractor. Contractor shall establish that, at the time of damage, he was not in breach of his obligation to hand over the project or works to the employer. Clause 738 (insurance coverage): The insurance shall cover the damages resulting from a sudden accident or force majeure. 27 Copyrights: HEGAZY & KATTAR 2020 BAHRAIN Law Takeaways Rescindment of the contract and obligation in case of impossibility to perform due to force majeure. No compensation for damage due to delay or failure to execute obligation as a result of force majeure. Responsibility of the Contractor and employer for their damaged goods and material due to force majeure. 28 Copyrights: HEGAZY & KATTAR 2020 UAE CIVIL CODE Federal Law Number 5 of 1985 Article 273 If performance of a contract becomes impossible due to a force majeure event, then the reciprocal obligation shall cease and the contract is deemed rescinded by statement of law. If performance of a contract becomes partially or temporarily impossible, the reciprocal obligation relevant to that impossible part shall cease and the obligor may terminate the contract. 29 Copyrights: HEGAZY & KATTAR 2020 UAE CIVIL CODE Federal Law Number 5 of 1985 Article 249 30 If unforeseen exceptional circumstances of public nature cause the performance of the contractual obligation to become more onerous, even if not impossible, and threaten of severe loss, the Court may, after consideration of each party’s interests, reduce the obligation in question to a reasonable and fair level. Agreement to the contrary shall be void. Copyrights: HEGAZY & KATTAR 2020 UAE CIVIL CODE Federal Law Number 5 of 1985 Article 287 No compensation for damage caused by an external event beyond the party’s control, such as a pandemic, sudden accident or force majeure. 31 Copyrights: HEGAZY & KATTAR 2020 DIFC Law No.6 of 2004 Article 82 32 A party to a contract shall be excused for non-performance if it proves that the nonperformance was due to an impediment beyond its control that it could not have reasonably expected it at the time of contracting – and that it could not have avoided its impact. Such excuse shall be temporary until the situation of force majeure ends. However such force majeure shall not excuse a party from its payment obligation. Copyrights: HEGAZY & KATTAR 2020 UAE Legislation Takeaway Partial or full termination of the contract in case of impossibility to perform due to force majeure - and no payment for non-fulfilled obligation. No compensation for damage caused by force majeure. In the event of hardship due to Force Majeure, the judge may amend the parties’ obligations only, without invalidating the contract. 33 Copyrights: HEGAZY & KATTAR 2020 KSA Saudi law is based on the Sharia principle (Hanbali school of Islamic interpretation in particular). If the contract includes a provision of force majeure, then most likely the provision will be upheld by Saudi courts, based on the principle of Agreements must be kept… or Pacta sunt servanda. However, if the clause is worded in way to promote uncertainty or speculation (that may be interpreted against the Sharia, then it could be made void. For public contracts, article 74 of the New Government Tender and Procurement Law (GTPL 2019) allows contract extension and waiver from delay fine “if the contractor delays in executing the contract for reasons beyond his control”. For other contracts, the concept of force majeure (quwah qahirah - impact by any Act of God or unforeseen condition) will be founded on fairness on a case by case basis. The concept of intervening contingencies (nazariyyat al-hawadith al-tari'ah) would grant the court the prerogative to alter the onerous contractual obligation for fairness. 34 Copyrights: HEGAZY & KATTAR 2020 Force Majeure in GCC Laws - What to Retain: Laws do not identify what constitutes force majeure or external events. Laws imply that the event of force majeure must be unforeseeable based on the principle of good faith and parties’ obligation to mitigate. The event of force majeure must be unavoidable and beyond the defaulting party’s control in order to be regarded as a Force Majeure event. Force majeure may be established on the grounds of either a physical or legal impossibility. A situation of mere hardship would not qualify as a Force Majeure. A situation of hardship will be resolved by the judge by fair alteration of obligations. A party can’t be excused of its own failures or delays if aggravated by force majeure. Relief from Liquidated Damages or other onerous obligations where the works or services have been delayed or interrupted by force majeure. Proof is required. 35 Copyrights: HEGAZY & KATTAR 2020 Recommendations FOR DEBTOR OR OBLIGEE : Serve notices. Maintain good substantiation records. Endeavor to mitigate and reduce impact. Be merciful and fair FOR CREDITOR OR OBLIGOR: Verify if received notices comply with contract deadlines. Request details and substantiation. Notify back if debtor’s own delays have caused or participated in aggravating the impact of COVID-19. Request mitigation plan Refer to contractual obligations in relevance Understand your contract Be merciful and fair 36 Copyrights: HEGAZY & KATTAR 2020 Conclusion of the Legal Part At this stage, COVID 19 may not be an event of force majeure as long as completion of works or fulfillment of obligations is not impossible. Unfortunately, claims and disputes are to be expected, leaving the door open for the judge or arbitrator’s fairness and interpretation on a case by case basis. The world will not only have to deal with the economic and humanitarian fallouts of COVID-19, but the judicial and legal sectors will be overwhelmed. At this stage, contractual documents are crucial. They will be your angels or your devils. 37 Copyrights: HEGAZY & KATTAR 2020 COVID-19 IN CONSTRUCTION CONTRACTS SAAD HEGAZY AGENDA Introduction Definitions of Force Majeure Force Majeure under FIDIC Claim Force Majeure Practical & Effective Solutions Conclusions Q&A 39 Copyrights: HEGAZY & KATTAR 2020 INTRODUCTION Covid-19, more commonly referred to as ‘coronavirus’, is a disease which originated in Wuhan, China, in November 2019. Construction professionals in the Middle East and globally, are now faced with the question of how they can protect against and mitigate the likely damage that will be caused if they are unable to complete their projects on time and/or fulfil their contractual obligations. 40 Copyrights: HEGAZY & KATTAR 2020 CONSTRUCTION CHALLENGES Material shortage or delay Labour shortage Price Increasement Lockdown and travel restrictions 41 Copyrights: HEGAZY & KATTAR 2020 COVID-19 IMPACT HSE Time for completion [Delays] Disruptions Suspension Terminations Additional cost Social impact 42 Copyrights: HEGAZY & KATTAR 2020 THE MOST COMMON QUESTION ? Is COVID-19 a force majeure event 43 Copyrights: HEGAZY & KATTAR 2020 FORCE MAJEURE ‘Force Majeure’ – As per French Law. 'An Act of God'; ' An Overpowering Force'; ' Unforeseen Event'; ﻗوة 'ﻗﺎھرة "There is no place for any damages when as a result of Force Majeure the debtor has been prevented from doing that to which he was obliged" - Napoleonic French Code "Events or circumstances that are unforeseen and beyond the reasonable control of any of the parties to a contract". Prevention of one or both parties to perform contractual obligations due to unforeseen supervening events". "Provide relief or suspend contractual liability should an unforeseen exceptional event prevent either Party from performing its obligations under the Contract". 44 Copyrights: HEGAZY & KATTAR 2020 FORCE MAJEURE “An event or circumstance that has an adverse effect on the ability of a contractor to perform any of its obligations under the Contract and that this event or circumstance is beyond the reasonable control of the contractor and is not resulting from negligence or in-action from his part’. An act of God which discharges a contracting party when a supervening, sometimes supernatural, event, beyond the control of either party, makes performance impossible. The common thread is that of the unexpected, something beyond reasonable human foresight and skill. Atlantic Paper Stock Ltd. v. St. Anne-Nackawic Pulp & Paper Co. 45 Copyrights: HEGAZY & KATTAR 2020 FORCE MAJEURE COMMON FACTORS Exceptional Prevent Contractual obligations performance Change circumstances under which obligations are performed Unforeseen External Event of ach party Not the Fault of either party 46 Copyrights: HEGAZY & KATTAR 2020 FOCRE MAJEURE UNDER FIDIC Red, Yellow & Silver Books – Clause 19 – Force Majeure Gold Book – Clause 18 - Exceptional Event – otherwise similar Clauses in the FIDIC Red Book 1999 Definition – Cl. 19.1 An exceptional event or circumstance: a) which is beyond a Party's control, which such Party could not reasonably have provided against before entering into the Contract, b) which, having arisen, such Party could not reasonably have avoided or overcome, and c) d) 47 which is not substantially attributable to the other Party. 47 Copyrights: HEGAZY & KATTAR 2020 FOCRE MAJEURE UNDER FIDIC Force Majeure may include, but is not limited to, exceptional events or circumstances of the kind listed below, so long as conditions (a) to (d) above are satisfied: i. includes war and hostilities ii. includes rebellion, terrorism and civil war includes riots and strikes, but only strikes by persons other than the Contractor's personnel and Subcontractors iii. includes explosive materials and radioactive contamination, so long as not attributable to the Contractor's use of such materials. iv. includes natural catastrophes such as earthquakes, hurricane, typhoon or volcanic activity." v. 48 Copyrights: HEGAZY & KATTAR 2020 FOCRE MAJEURE UNDER FIDIC Notice of Force Majeure – Cl. 19.2 If a Party is or will be prevented from performing any of its obligations under the Contract by Force Majeure, then it shall give notice to the other Party of the event or circumstances constituting the Force Majeure and shall specify the obligations, the performance of which is or will be prevented. The notice shall be given within 14 days after the Party became aware, or should have become aware, of the relevant event or circumstance constituting Force Majeure. The Party shall, having given notice, be excused performance of such obligations for so long as such Force Majeure prevents it from performing them. Notwithstanding any other provision of this Clause, Force Majeure shall not apply to obligations of either Party to make payments to the other Party under the Contract. 49 Copyrights: HEGAZY & KATTAR 2020 FOCRE MAJEURE UNDER FIDIC Duty to Minimise Delay- Cl. 19.3 Each Party shall at all times use all reasonable endeavours to minimise any delay in the performance of the Contract as a result of Force majeure. A Part shall give notice to the other Party when it ceases to be affected by the Force Majeure. 50 Copyrights: HEGAZY & KATTAR 2020 FOCRE MAJEURE UNDER FIDIC Consequences of Force Majeure [Contractor’s Claim] – Cl. 19.4 a) An extension of time for any such delay, if completion is or will be delayed, under Sub-Clause 8.4 [Extension of Time for Completion], and b) If the event or circumstance is of the kind described in subparagraphs (i) to (iv) of Sub-clause 19.1 [ Definition of Force Majeure] and, in the case of Sub-paragraph (ii) to (iv), occurs in the Country, payment of any such Cost. Contractor Claims Cl. 20.1, include: 1- Clause (8.4) Extension of Time for Completion, paragraph (d) extension of the Time for Completion or Take-over delayed by any of the following causes: (d) Unforeseeable shortages in the availability of personnel or Goods caused by epidemic or governmental actions.’ 51 Copyrights: HEGAZY & KATTAR 2020 FOCRE MAJEURE UNDER FIDIC 2- Employer’s Risks – Cl. 17.3 and 17.4 • Clause (17.3) Employer’s Risks, linked to Clause (17.4) Consequences of Employer’s Risks ‘If the risks listed in Sub-Clause 17.3 results in loss or damage to the Works, Goods or Contractor’s Documents, the Contractor shall promptly notify the Engineer and shall rectify this loss or damage to the extent required by the Engineer. • If the Contractor suffers delay/incurs cost from rectifying this loss, Contractor must notify the Engineer and then be entitled to an extension of time for any such delay, if completion is or will be delayed. 52 Copyrights: HEGAZY & KATTAR 2020 FOCRE MAJEURE UNDER FIDIC Optional Termination– Cl. 19.6 If the execution of substantially all the Works in progress is prevented for a continuous period of 84 days by reason of Force Majeure of which notice has been given under Sub-Clause 19.2 [Notice of Force Majeure], or for multiple periods which total more than 140 days due to the same notified Force Majeure, then either Party may give to the other Party a notice of termination of the Contract. In this event, the termination shall take effect 7 days after the notice is given, and the Contractor shall proceed in accordance with Sub-Clause 16.3 [Cessation of Work and Removal of Contractor's Equipment]. 53 Copyrights: HEGAZY & KATTAR 2020 CLAIM FOCRE MAJEURE Establish that the Event is a Force Majeure Event – Satisfy requirements of cl. 19.1 (a)-(d) and (i)-(v). Establish ‘prevention’ from preforming any obligations under the Contract cl.19.2.Physical ? Legal? Contractor to give notice within 14 days after becoming aware or should have become aware of the Force majeure event (cl. 19.2). Keep Good Records – ensure you keep some very good specific records that document the impacts you are now suffering [ resources, Notifications, records, cost,..] Contractor has obligation to mitigate the effects of the Force Majeure Event, 54 Copyrights: HEGAZY & KATTAR 2020 CLAIM FOCRE MAJEURE If the Contractor is ‘prevented’ and has given notice under cl.19.2 and has suffered delay and/or incurred costs, then Contractor is entitled, subject to Cl. 20.1 to claim for: Extension of Time under cl 8.4. Additional costs if the Event is of the kind described in paras (i) to (iv) of cl. 19.1 and if paras (ii) to (iv) occur in the country. Notice under 20.1 to be given no later than 28 days. Fully detailed claim within 42 days after the contractor became aware, or should have become aware, of the Force Majeure Event giving rise to the claim - cl. 20.1. Final claim within 28 days after the end of the effects resulting from the Force Majeure Event – cl.20.1. Engineer to provide a response to the contractor within 42 days – cl. 20.1 55 Copyrights: HEGAZY & KATTAR 2020 MOVING FORWARD Read your Contract Check the Governing Law of the contract Read the Force Majeure and Termination clauses Check, evaluate, and update the impact Check the Notices clauses , what steps are required Check the mitigation measures you can do to mininise the impact Check your insurance coverage Keep records and keep the other party updated 56 Copyrights: HEGAZY & KATTAR 2020 CONCLUSIONS List of Force Majeure does not include epidemic, However the lead into the clause says ‘….including but not limited to,…’ It’s up to you to decide what to list as force majeure but always try to be as full as possible, not cryptic or short. The clauses are usually interpreted strictly against the interests of the party that inserted them in the contract. Given the almost unprecedented nature of the Covid-19 outbreak and/or the actions of governments around the world in response, it is likely that Covid-19 would constitute a force majeure event under many force majeure clauses. 57 Copyrights: HEGAZY & KATTAR 2020 REFERENCES Civil Codes FIDIC Red Book 1999 Previous AACE Technical Presentations Online sources. 58 Copyrights: HEGAZY & KATTAR 2020 CONTACT AACE QATAR CONTACT US Website https://www.aacei-qatar.org/ Email Qataraace@gmail.com LinkedIn https://www.linkedin.com/in/aaceqatar/ Facebook https://www.facebook.com/AaceQA?fref=nf 59 COVID-19 IN LAW AND CONSTRUCTION CONTRACTS Saad Hegazy saad@hegazy.net Qatar : +974-70204096 UAE : +971-559593921 https://www.linkedin.com/in/saadhegazy Paola Kattar paola.kattar@keoic.com Qatar : +974-33014096 https://www.linkedin.com/in/paola-kattar-5717b518