| Impact of overseas epidemic on domestic labor service industry |
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| Impact of overseas epidemic on domestic labor service industry For overseas projects suffering from new coronavirus epidemic, the answer is only for reference for domestic projects. In addition, due to the great differences in the contract provisions of various overseas projects, this paper only provides general reference opinions according to the general practice of international projects, not as formal legal opinions. For specific overseas projects, it is necessary to analyze the provisions of the contract and applicable laws. 1、 Is the new coronavirus outbreak force majeure? In the international engineering practice, there are special force majeure clauses under the contract. For example, the FIDIC 1999 EPC turnkey contract conditions (silver book) clearly stipulates the force majeure clause. Although there is no force majeure clause in the 2017 edition of the silver book, the "exceptional event" is stipulated In essence, it is a force majeure clause, but it replaces the concept of force majeure with the concept of excluded events. According to the provisions of China's laws and the provisions of force majeure under the contract model text, force majeure generally refers to "unforeseeable, unavoidable and insurmountable objective conditions". The new coronavirus epidemic meets the conditions of force majeure and should be regarded as force majeure in principle. However, considering that the country where the overseas project is located is a foreign country, and the new coronavirus epidemic occurs in China, whether Chinese contractors can identify the impact of the new coronavirus epidemic on the implementation of overseas projects in China as force majeure still needs to find out the provisions of the contract, rather than generalize. In other words, the new coronavirus epidemic also tests the negotiation results of the signed contract. Whether the contract has been seriously discussed in the project acquisition stage, whether the contract negotiators are professional or not, and who is "swimming naked" in the negotiation and signing stage will be exposed! 2、 If there is no force majeure clause in the contract, how to deal with it? If the contract is not perfect and the force majeure clause is missing, it is more difficult for the contractor to claim exemption on the ground of new coronavirus epidemic, but it does not mean that there is no remedy at all. In the practice of international civil and commercial law, if there are provisions in the contract, the provisions in the contract shall be followed; if there is no provision in the contract, it shall be supplemented by the applicable law of the contract. In this case, it is necessary to find out whether there is force majeure mechanism under the law applicable to the contract, and claim exemption by force majeure mechanism provided by law. It should be noted that in practice, many international engineering contracts are governed by the laws of common law system, such as British law and Singapore law. However, there is no force majeure system under Anglo American law, and the similar is "failure of contract" However, the contract failure system is very strict when applied. On the contrary, British and American laws emphasize that "the contract must be observed", and it is more difficult to claim exemption for the new coronavirus epidemic on the ground of contract failure. This proves once again how important it is to seriously discuss the contract and clearly stipulate the force majeure clause in the contract! 3、 Before who makes the determination of "public health emergencies of international concern", can the outbreak of new coronavirus be regarded as force majeure? The World Health Organization announced on January 31, 2020 that the outbreak of new coronavirus in China constitutes a "public health emergency of international concern (pheic)". This involves the issue of whether the new coronavirus outbreak can be identified as force majeure during the period before January 31. The author believes that whether the World Health Organization has made a pheic determination on the new coronavirus epidemic situation does not affect the determination of whether the new coronavirus epidemic situation constitutes force majeure; whether the new coronavirus epidemic situation can be identified as force majeure before January 31 still needs to be judged according to the first and second items mentioned above. However, the World Health Organization's pheic determination of the new coronavirus epidemic situation can be used as evidence of force majeure. |
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