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What impact does each strategy have on the decision-making processes of contract parties? It does not regulate the validity of the contract, impact of the contract on property rights, liability for personal injuries (such as § 823 BGB, Produkthaftungsgesetz) or general contract law (e.g. Legal experts believe that contractual provision for personal injury is not necessary, whereas provision which limits physical damages is necessary and such damages can be limited to a certain amount. The person who draws up the general terms and conditions is called the user of the general terms and conditions, whereas the company which accepts them is called the other party. The American Institute of Architects has adopted the position that contractors should take on the responsibility for the risks that neither party can control and for damages resulting from those risks. A guarantee means that the party should take responsibility for the contractual obligation even if it is not at fault. For this reason, not only possible risks but also potential (e.g. The International Institute for the Unification of Private Law (UNIDROIT) Principles, the United Nations Convention on Contracts for the International Sale of Goods (CISG) and Principles of European Contract Law also focus primarily on sales law.

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Parallel zu der Messe fanden zahlreiche Seminare und Treffen statt, darunter auch das der United Nations World Tourism Organization (UNWTO), an dem S.E. FIDIC contract templates feature a regulatory framework that incorporates the most important and detailed provisions recommended by major international organizations, such as the World Bank. A certain degree of freedom to change and adapt provisions exists, but certain limits are set by the applicable laws and jurisdiction and different legal systems set different limits for contract-drafting processes. Limitation of liability clauses are contractual provisions which specify the damages that the contracting party is liable for in the event of breach of contract. Within contractual liability of contractor there are three relevant types which should be considered at first by the contracting parties, defects liability, direct and indirect damages. General terms and conditions are terms and conditions that have been formulated in general terms for use in more than one contract. Moreover, the principle of freedom of contract allows choosing any model, because there are no specific rules for the contract law for work and labor or construction contract law. Furthermore, there is an important differentiation between direct and indirect damages. Direct damages are defects or damages that occur due to one’s own behavior and indirect damages are damages that result from these defects. Templates split all risks into general and specific groups of clauses.37 Limitation of liability and special risk clauses are specific clauses. This process is also known as control of general terms and conditions.

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Templates help to prevent known risks; they are often considered as checklists used to ensure that all standard regulatory needs specific to foreign legal systems are addressed in the contract draft. Regardless of the chosen international and/or national templates (if any) on which a contract draft is based, the legal experts in charge for drafting contracts for megaprojects should have a comprehensive understanding of where and how such templates can be changed and be adapted to the risks and regulatory needs of megaprojects, especially regarding liability. The applicable law clause is a provision of a contract in which the parties designate the law according to which disputes between the contracting parties shall be determined. Legal risks include the changes and new laws which are introduced to legislation after the contract has been signed. Naturally occurring risks, including risks concerning climatic and geological conditions and other natural catastrophes, such as typhoons and hurricanes, are usually shared between the employer and the contractor. The regulatory needs of foreign legal systems are often systematized in templates to increase the awareness of parties involved.

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The clauses that regulate liability can diverge from or amend contracts as long as the clauses remain within the bounds of what is permissible by law. Templates do not create a substitute law or offer a perfect structure; contracts aim to close the legal gaps and allocate the risks within the allowed limits of applicable laws. Notable templates include those of the FIDIC, Turnkey Contracts for Industrial Works of ORGALIME, The Model Form for Process Plant Construction of the Engineering Advancement Association of Japan (ENAA), The Model Form of Contract for the design, supply and installation of electrical, electronic and mechanical plant (MF/1) of the Institution of Engineering and Technology (IET), jointly with the Institution of Mechanical Engineers (IMechE) and The Forms of Contract of the Institution of Chemical Engineers (IChem). Despite the importance of the topic, few pertinent sources existed and those found mostly focused on limiting the risks of megaprojects. The employer is liable for all risks not expressly allocated to the contractor, such as those related to consequential damages. In FIDIC Books such legal risks are allocated to the employer. Most of the political and social risks are allocated to the employer in the Force Majeure Clause. A contractor assumes many risks, such as the potential of “any unforeseeable incident that could not be considered force majeure and which, therefore, would not give rise to a right to compensation.”33 Nevertheless, it is challenging to create a unique definition for such contracts in an international format, especially considering the various concepts, interpretations of definitions and components that are as considered to be fundamental in different countries.


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