X

Map Disclaimer

Information in this screening tool is provided for informational purposes only and does not constitute legal or scientific advice or service. The World Bank makes no warranties or representations, express or implied as to the accuracy or reliability of this tool or the data contained therein. A user of this tool should seek qualified expert for specific diagnosis and analysis of a particular project. Any use thereof or reliance thereon is at the sole and independent discretion and responsibility of the user. No conclusions or inferences drawn from the tool or relating to any aspect of any of the maps shown on the tool, should be attributed to the World Bank, its Board of Executive Directors, its Management, or any of its member countries.

The boundaries, colors, denominations, and other information shown on any map the tool do not imply any judgment or endorsement on the part of the World Bank concerning the delimitation or the legal status of any territory or boundaries. In no event will the World Bank be liable for any form of damage arising from the application or misapplication of the tool, any maps, or any associated materials.

Part A: General Topics - 21. Miscellaneous Topics | 21.2 Force Majeure

As a general matter, force majeure concerns unforeseeable and unavoidable conditions such as war whether declared or not, civil disturbances, riots, blockades, sabotage, embargo, natural disasters, earthquakes, fire, floods, volcanic eruptions and the like. It does not include preventable conditions such as but not limited to labour strikes or a building collapsing due to poor construction.

In civil law jurisdictions, the Civil Code usually has an Article which defines the concept of Force Majeure and which would normally apply to mining activities. In Common Law countries, force majeure is typically dealt with in mining contracts. However, countries may consider providing for force majeure in a mining law.

21.2 Example 1:

Article [_]

(1) Any events, acts or circumstances which are unforeseeable, compelling, beyond the control or the wishes of a Party and which prevent said Party from performing their obligations, or which make it impossible for said Party to perform their obligations, constitute force majeure.

(2) The following events may constitute force majeure:

(a) war (whether declared or not), armed insurrection, civil unrest, blockades, riots, sabotage, embargos, and general strikes;

(b) any natural disaster, including epidemics, earthquakes, storms, floods, volcanic eruptions, tsunamis or other types of extreme weather, explosions and fires; and

(c) any other cause which is not within the control of the Party involved, as defined in the present article, but excluding economic hardship resulting from adverse market price fluctuations.

(3) Accordingly, the following does not constitute force majeure within the meaning of the present [Code][Act][Law]: any reasonably foreseeable act or event that could be guarded against by exercising reasonable diligence. Similarly, any act or event that would make it more difficult or onerous for the person liable to perform an obligation to do so does not constitute force majeure.

(4) As soon as possible after an event of force majeure has occurred or has been discovered, and by no later than fifteen (15) days of its commencement, the Party who invokes force majeure must notify the other Party, by registered letter with acknowledgement of receipt, setting out the elements of the force majeure and its probable consequences for carrying out the obligations contained in the legal instrument which establishes the obligations.

(5) The Party concerned must at all times take any measures necessary to minimise the impact of the force majeure occurrence on the performance of their obligations and to ensure that normal performance of the obligations affected by the force majeure occurrence is resumed within the shortest possible time.

(6) If, following the occurrence of force majeure, the performance of the obligations is suspended for longer than one (1) month, the Parties must, at the request of either party, meet as soon as possible to consider the implications of said events as regards the performance of the Agreement and, in particular, as regards any kind of financial obligation imposed on each Party, their affiliates and their subcontractors. In this last case, the Parties should try to find a suitable financial solution to adapt the Project to the new situation, in particular, taking any measures which shall ensure that the Parties' economic situation stabilises in such a way that they may continue with the Project.

(7) In the event that there is disagreement regarding the measures to be taken three months after the event force majeure has been declared, either Party may immediately start conciliation proceedings failing which, arbitration proceedings.

Annotation

Drawn from Guinea’s mining law (2011), the provision defines force majeure as an unforeseeable event beyond a party’s control which makes the performance of its obligation impossible under the circumstances. The provision enumerates events which can constitute Force Majeure, including wars, natural disasters and more generally, any event beyond the party’s control with the exception of economic hardships and fluctuation in the market price.

The provision excludes events that could have been avoided, had it been for the lack of due diligence of the party. It also excludes the events which only make performance more onerous.

The provision provides for the procedure in case of force majeure and states that the party invoking a case of force majeure has 15 days from the occurrence of the event to notify its co-contracting party including the likely consequences of its occurrence.

The party shall exercise its best efforts to minimize the impact of the force majeure event and shall make effort to ensure, as soon as possible that normal performance of the obligations resumes. If the suspension of the performance lasts for more than a month, the parties shall meet to review the implication of the suspension of the obligations and shall try to reach an agreement to adapt the performance to the new circumstances. If they cannot reach an agreement within three months after the occurrence of the event, the matter can be submitted to a conciliation and an arbitration proceeding at the request of one of the parties.

21.2 Example 2:

Article [_]

The…contract may provide special schemes for force majeure and stability of economic and fiscal conditions, especially in case of worsening conditions for its implementation of the intervention in the [Country], to legislation or regulation after the date of entry into force.

Annotation

Drawn from Cameroon’s previous oil and gas law (2002), the provision leaves the implementation of force majeure to the choice of the parties to a contract and thus remains vague on its conditions of application.