Causas motivadoras de la delincuencia Juvenil

Force Majeure Events are a limited category of events of exceptional severity which are outside the control of either party and which prevent or delay the private party from performing an obligation under the project agreement.

If a Force Majeure Event occurs, the private party's obligations will be suspended to the extent and only for the duration such obligations are affected by the Force Majeure Event and otherwise in accordance with the principles set out in this Chapter. The private party will not be entitled to financial relief and government will not be entitled to compensation in respect of a Force Majeure Event.

20.1 Force Majeure Events

(a) Force Majeure Events are a limited category of events of exceptional severity which are outside the control of either party, namely (subject to any necessary project specific variations):

lightning, cyclones, earthquakes, natural disasters, landslides, tsunamis (i)

and mudslides;

civil riots, rebellions, revolutions, terrorism, insurrections and military and (ii)

usurped power, act of sabotage, act of public enemy and war (declared or undeclared);

ionising radiation, contamination by radioactivity, nuclear, chemical or (iii)

biological contamination unless caused by the private party or sub- contractors (excluding the risk of pollution and contamination allocated to the private party in accordance with Chapter 4 (

Environmental issues and Site Conditions)); and fire, flood or explosion caused by events referred to in (iv)

paragraphs 20.1(a)(i) or 20.1(a)(ii) above.

(b) In the case of paragraph 20.1(a) above, jurisdictions have the flexibility of adopting or not adopting some or all of the Force Majeure Events listed or adopting further Force Majeure Events. However, Force Majeure Events should strictly be limited to those events that are catastrophic in nature.71 Additional events to those listed should only be adopted where this is warranted by the unique features of the project.

20.2 Suspension and Alternative Arrangements

20.2.1 Notification

(a) The private party must notify government within a specified time of the occurrence and effect of the Force Majeure Event and provide full details of the Force Majeure Event.

(b) The private party must continue to update government at specified intervals for the duration of the Force Majeure Event.

20.2.2 Suspension of obligations

Subject to 20.2.1, to the extent that:

(a) a Force Majeure Event prevents the private party from performing all or a material part of its obligations under the project agreement;

(b) the impact of the Force Majeure Event could not reasonably have been prevented, mitigated or recovered by the private party acting in accordance with Good Industry Practice;

(c) the private party is using its best endeavours to perform its obligations under the project agreement; and

(d) the private party (including agents, employees or sub-contractors) did not cause (either directly or indirectly) the Force Majeure Event,

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The definition of Force Majeure Events should only include events which are likely to have a catastrophic effect on either party's (although usually the private party's) ability to fulfil its obligations under the Project Contracts and which neither party can prevent or where neither party is in a better position to manage the consequences of the event occurring. In practice, such events are highly unlikely to occur and this should be reflected in the drafting of Force

Majeure Event will be suspended but only to the extent and for so long as those obligations are affected by the Force Majeure Event.72

No default notice may be given by government to the private party in respect of a breach of any obligations which are suspended during the period of suspension.

20.2.3 Alternative arrangements

During the period for which the private party has been granted relief, government may make alternative arrangements for the performance of obligations suspended by a Force Majeure Event.

20.2.4 Mitigation

During the period of the suspension, the private party must use all reasonable endeavours to prevent or mitigate the effects of the Force Majeure Event and must take all reasonable steps in accordance with Good Industry Practice to overcome or minimise the consequences of the Force Majeure Event. This may include for example incurring reasonable expenditure, rescheduling resources and implementing appropriate temporary measures.

20.2.5 Cessation of Force Majeure Event

The private party must immediately notify government once it ceases to be prevented or delayed from performing its obligations as a result of the Force Majeure Event and must recommence performance of its suspended obligations as soon as it becomes able to do so.

20.2.6 No financial relief

Government will not be obliged to provide any financial relief to the private party during the period of suspension (e.g. to meet the private party's fixed operating costs) or extend the Contract Term to take account of the period of suspension.73

20.2.7 No compensation to government

The private party will not be liable to compensate government for any costs or losses government incurs during the period of suspension.74

20.3 Termination for Force Majeure Event

20.3.1 Termination other than for Uninsurable Force Majeure Event

(a) As soon as practicable following the Force Majeure Event (other than an

Uninsurable Force Majeure Event), government and the private party must consult with each other and use reasonable endeavours to agree appropriate terms to mitigate the effects of the Force Majeure Event and facilitate continued performance of the project agreement (including reinstatement of the works or facility where appropriate).

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In the case of a toll road project, the obligation to keep all traffic lanes open will only be suspended to the extent that the Force Majeure Event prevents the safe passage of vehicles.

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However, see sections 15.1(b)(iv) and 20.3.2 in relation to Uninsurable Force Majeure Events.

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Sections 20.2.6 and 20.2.7 are consistent with the principle that for risks (such as Force Majeure Risk) which neither party is better placed to control or manage, the loss should lie where it falls.

(b) If:

the private party and government are unable to agree appropriate terms (i)

to mitigate the effect of the Force Majeure Event and facilitate the continued performance of the project agreement within a specified period; and

the Force Majeure Event is continuing or its consequences remain such (ii)

that the affected party has been or is unable to comply with all or a material part of its obligations under the project agreement for more than a specified period,

then government may terminate the project agreement.

(c) Upon termination of the project agreement, government will pay the private party a Termination Payment in accordance with the principles set out in Chapter 25 (Termination Payments).

20.3.2 Termination for Uninsurable Force Majeure Event

At any time after the occurrence of a Force Majeure Event that is an Uninsurable Force

Majeure Event,75 government may in its absolute discretion terminate the project agreement by notice and government will be liable to pay the private party a Termination Payment in

accordance with the principles set out in Chapter 25 (Termination Payments).

21. Reinstatement and repair