3.4 What steps should be taken to require a treaty amendment because of unpredictability or when requested by another Contracting Party? In the absence of contractual arrangements, the party wishing to invoke a review due to unpredictability must demonstrate that the performance of the contract has been overly complicated by the pandemic or its consequences. 3.3 In this case, can a review of unpredictability be invoked? If there is a stringency clause, it must be analysed on the basis of the events mentioned in the clause and the terminology used (whether it is a broader or narrow approach) in order to determine whether Covid-19 can be invoked in this context. In the absence of such a clause, the legal definition of unpredictability applies. Where there is a force majeure clause, it should be examined to determine the events mentioned in the clause and the terminology used (with a narrow or broad approach) to determine whether it applies to the Covid 19 crisis and the state measures currently in force. In the absence of a specific clause in the Treaty, reference should be made to the legal definition. (5) anticipate and measure the consequences of carrying out a review due to unpredictability; in the absence of an agreement between the parties, there is a risk of review of the contract by the judge or of judicial annulment. – The definition of force majeure can be extended, limited or simply limited to a list of predefined events. The difference between these two definitions is typically from the point of view of the origin of the changes. From the owner`s perspective, change orders are controlled by subcontractors and suppliers; It is therefore a change in the value of the commitment rather than a change in the project budget.
For them, the “project budget” is considered a TFA or other internally approved budget mechanism. For owners, volume changes are usually absorbed by contingency in the TFA and can sometimes lead to an additional TFA requirement. In contrast, contractors face far-reaching changes that occur from multiple locations, including suppliers, customers, location conditions, MFIs, and hundreds of other problems encountered during the execution of a project. The definition of force majeure and its effects may be modified by contract. Therefore, to determine whether the MAC clauses are applicable to the Covid 19 outbreak and/or the government measures currently in force, it is necessary to analyze the terms and definitions of each clause. If such a clause is not included in the Treaty, to the exclusion of the provisions of Article 1195, it is necessary to examine whether the present circumstances may allow a request for an amendment to the Treaty. A request for modification of the treaty on the reason of unpredictability does not stop the performance of the contract. The requesting party should therefore not be held liable in this respect. The risk in this case is uncertainty as to what the courts will decide without agreement between the parties….