국제건설계약에서 불가항력 조항에 관한 고찰(FIDIC 계약조건을 중심으로)

As with other types of international contracts, a force majeure clause in an international construction contract is the clause intended to exempt a contractual party from performance of a contractual obligation(s). Force majeure refers to an unforeseeable event occurring after execution of a contract that makes a party’s performance of obligations under the contract impossible even if the party has exerted all means to avoid such event and perform the contractual obligations. So, in other words, while parties to a contract must perform their respective obligations based on the firm principle that the contract must be performed, the force majeure clause provides the parties with the only means of avoiding the relevant performance under specific situations. In the foregoing connection, under the current circumstances where international construction projects are ever-increasingly more complex and the extent of risks a contractor faces while carrying out constructions works are significantly more varied and increasing, the need to have a well-thought out force majeure clause cannot be overemphasized. Especially, if the governing law to an international construction contract is that of a common law country, then it will be more essential to have detailed force majeure provisions, as the common laws are based on strict liability regime, and thus there is no guarantee that a party could be exempted from non-performance of contractual obligations on the basis of occurrence of a force majeure event. Article 19 of FIDIC Contract Conditions has such detailed force majeure provisions that provide for a party being exempted from contractual performance upon occurrence of a force majeure event that is beyond the party’s control and which event renders the party’s performance actually or legally not possible. FIDIC (Fédération International des Ingénieurs Conseil) has been well known for publishing model international construction contract conditions that fairly and impartially allocate risks between employer and contractor. Accordingly, in the context of a contractor carrying out an international construction works and wishing to protect its risks from force majeure events, the contractor should do well to utilize the force majeure provisions under FIDIC Contract Conditions as a starting point (when negotiating for execution of the relevant international construction contract) and then tailor such provisions in line with the relevant international construction works being carried out to the extent possible, which should serve as an effective way of covering the contractor’s risks in connection with the force majeure events. In the meantime, knowing and understanding the background of the force majeure clause of FIDIC Contract Conditions would be helpful to better utilization of such force majeure provisions in the context of an international construction contract. Specifically, almost all nations recognize exemption of contractual performance based on the force majeure principles, irrespective of whether they are common law-based (strict liability based) or civil law-based (contractual liability found based on fault) nations, although the scope of the force majeure principles recognized or development and evolution of such principles may differ from nation to nation. And there have been efforts to unify the force majeure principles internationally, and the results of such efforts are CISG Article 79, PICC Article 7.1.7 and PECL Article 8:108, and these international trade or contract principles are embedded in Article 19 of FIDIC Conditions. Ultimately, when utilizing Article 19 of FIDIC Contract Conditions, it would be important to remember that the FIDIC Contract Conditions are essentially allocation of certain risks between employer and contractor in relation to various matters that pertain to carrying out international constructions works. In the foregoing connection, understanding and interpretation of the force majeure provisions under FIDIC Contract Conditions should be done in conjunction with other clauses of FIDIC Contract Conditions, especially, Article 17 that relates to the risks borne by employer. In the same vein, when negotiating and revising the force majeure provisions, attention must be paid to other relevant clauses, so that any revisions to the force majeure provisions are consistent with other clauses of the relevant international contract. In addition, because of certain differences in governing laws, it would be necessary to check whether the final force majeure provisions that have been negotiated by the parties would be consistent with any mandatory provisions of the governing law to the international construction contract at hand. This would be more especially true when the governing law is that of a civil law based nation, which would likely have force majeure provisions stipulated in its laws.