60 NEWSLETTER 2021 Unforeseeable Physical Conditions in the most frequently used editions, such as the “red book” and “yellow book”. Article 4.12 regulates the parties’ and, especially, the contractor’s, requests of additional time and expenses in case of the occurrence of an unexpected physical circumstance. Thus, even though the occurred circumstance was not unforeseen, an important precaution has been taken to prepare the parties for the relevant circumstances, to continue the work, and to prevent disputes regarding the allocation of risk through this Article.5 Furthermore, in the same model contracts, the term ‘unforeseeable’ is defined as “Not reasonably foreseeable by an experienced contractor by the date of submission of the tender.”6 In the “silver book”, which is another FIDIC model contract, a different regulation is present in favor of the employer. In Article 4.12 of the silver book entitled “Unforeseeable Difficulties”, the following facts that (a) the contractor shall be deemed to have obtained all necessary information as to risks, contingencies and other circumstances that may influence or affect the works, (b) by signing the contract, the contract accepts total responsibility for having foreseen all difficulties and costs of successfully completing the works, and (c) the contract price shall not be adjusted to take into account any unforeseen difficulties or costs, are regulated. As it may be understood from that Article, the FIDIC silver book brings through it a contractual provision, which leaves the total risk related to unforeseeable circumstances with the contractor.7 Most EPC contracts, such as these model contracts, include provisions such as adaptation, force majeure and hardship, regarding unforeseeable circumstances and unforeseeability. While drafting these Articles, initially, the strategy and dispute resolution method, and consequences in case the contractor fails to clear up the effects 5 Bunni, Nael G.: The FIDIC Forms of Contract, 3rd Edition, Blackwell Publishing, p. 528. 6 Bunni, p. 528. 7 Bunni, p. 584-585.
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