The Exemption Of Liability In International Project Contracting Under COVID-19

In recent years,the Chinese engineering contractors have taken an important market position in the international engineering field.The infectious diseases are one of the major threats to contractors’successful delivery of project.In January 2020,the Corona Virus Disease(hereinafter referred to "COVID-19")has spread rapidly around the world,posing a serious threat to human life.Countries around the world have taken a number of measures to combat the Pandemic and promulgated a number of laws and regulations for the control of the spread of the virus.International engineering sector is featured with large-scale frequent cross-border flow of personnel and materials,and densely populated by on-site construction staff.Many overseas projects undertaken by Chinese contractors have been affected by the COVID-19 pandemic due to the mandatory control measures taken by the governments of many countries,and it has led to a number of adverse factors.Some contractors might suffer from the claim for breach of contract from the owner and falls into a serious contract dispute.In order to help the contractors to resolve contract disputes caused by COVID-19,it is crucial to resolve disputes over the application of COVID-19 as an exemption clause in international construction contracts.This includes judging the legal nature of COVID-19 in international projects and whether it can be exempted from liability by the application of force majeure or change of circumstances.Force majeure and change of circumstance have been a hot topic among academic community,however there is little research about above exemption clauses in international engineering field under COVID-19 background.As a gesture of innovation,in order to minimize the loss caused by COVID-19,this paper conducts an in-depth research on the application of force majeure and change of circumstance in international engineering field under COVID-19 background from the perspective of contractors.Firstly,there is certain particularity in terms of the international engineering field.The COVID-19 has caused certain exceptions to the unpredictability,inevitability and insurmountability as the key elements of force majeure,indicating that it is not inevitable for COVID-19 to constitute force majeure in international engineering field.In judicial practice,the force majeure clause is limited to the exemption or termination of the contractual obligations of the parties,therefore it is necessary to apply the change of circumstances clause in certain cases.Secondly,the author discusses the particularity and applicability of force majeure in international engineering contracts by means of case study,comparative analysis and literature study,and analyzes the disposal principles of force majeure in continental and common law systems.This paper thus analyzes the difficulties in the application of change in circumstance in international engineering,and focuses on the unfairness standard as well as the renegotiation system under change in circumstance system.Finally,the author proposes some countermeasures for the application of exemption of liability for Chinese contractors in international engineering projects under COVID-19,including the unified application of force majeure and change in circumstance;to define the scope of exemption comprehensively and reasonably before the signing of the contract,to actively fulfill the obligation of contract proof,to strictly control the time validity of claim;as well as to clearly define the application standard of change of circumstance by defining unfairness,non-imputation principle and unpredictability standard.