Who would have thought that we would be frequently negotiating the wording of the force majeure clause. In the time of Covid-19, this has been a reality.
As established in the Civil Code, "no one shall be liable for events that could not have been foreseen, or which, if foreseen, were unavoidable".
In the force majeure clause, we have been negotiating the inclusion or elimination of strikes, labor conflicts, labor shortages, the impossibility of obtaining raw materials, transportation problems. There have even been attempts to mix the issue with the increase in the price of raw materials or transportation. We must clarify that, although the above examples can be negotiated as force majeure, the price increase is another issue that we will deal with later on.
We are also still negotiating to include a paragraph in the force majeure clause relating to Covid-19 (and now also relating to the war in Ukraine). Basically, this paragraph makes it clear that the parties are aware of the current situation and that it does not prevent the development and execution of the contract. It may also include that if new circumstances arise regarding Covid-19, the parties will negotiate in good faith how to adapt to such circumstances without delaying the development of the project.
In addition, it is no less common for one of the parties to seek the inclusion of a hardship clause. In the Anglo-Saxon world, this clause is much more widespread. In the example of a supply contract, the supplier will seek the inclusion of the clause, which provides that if an exceptional circumstance occurs that causes hardship on the supplier, the supplier may modify prices to continue performing the contract. On many occasions, the understanding is reached that, in the event of such an exceptional circumstance, the parties will negotiate in good faith alternative contractual terms to restore the rights and obligations that the parties assumed when they signed the contract.
In any case, we recommend including these clauses if the contract is subject to the law of a country of the Romano-Germanic law family. In the case of subjecting the contract to the law of a common law country, this becomes absolutely indispensable.