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Emergenza covid-19 e provvedimenti internazionali

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È opportuno distinguere tra ordinamenti di “civil law” e ordinamenti di “common law”.

Per quanto riguarda gli ordinamenti di “common law”, non esiste una force majeure doctrine, ossia un principio destinato ad operare ogni volta che si verifica l’impossibilità di eseguire un contratto.

In mancanza di una previsione contrattuale la parte che si trova nell’impossibilità di eseguire rischia di non avere alcuno strumento disponibile.

In sintesi:

  • La formulazione e l’ampiezza della clausola di forza maggiore sono il dato di partenza. Sono di regola determinanti per stabilire se una parte ha diritto di chiedere l’esonero.
  • La parte che invoca la forza maggiore è tenuta ad operare con la massima diligenza per superare le difficoltà e rispettare le obbligazioni assunte.
  • La force majeure exception non può inoltre essere invocata quando il contratto è divenuto semplicemente più oneroso o meno redditizio.
  • L’onere della prova delle circostanze che determinano la forza maggiore grava sulla parte che la invoca.
  • In caso di ambiguità o dubbio nell’interpretazione, la clausola di force majeure va interpretata in modo restrittivo.

La tempestività nell’invocare il ricorso della forza maggiore e nel rispettare i termini previsti nel contratto è imperativa. Eventuali ritardi anche modesti possono comportare la decadenza dal diritto a richiedere l’esonero.

Esiste un modello di clausola di forza maggiore che può essere considerata protettiva. La Camera di Commercio Internazionale ha infatti aggiornato le Clausole ICC Force Majeure e Hardship per aiutare le imprese nella redazione dei contratti internazionali e rispondere efficacemente a eventi imprevisti, come l’epidemia in corso.

La clausola di forza maggiore e l’hardship clause, elaborate nel 2003, vengono incontro alle esigenze delle imprese operanti a livello internazionale. 

La clausola di forza maggiore, o anche detta la Force Majeure Clause, disciplina gran parte delle problematiche che si presentano nel contesto della forza maggiore.

Queste problematiche comprendono tutte quelle circostanze non imputabili che comportano l’impossibilità di adempiere alle obbligazioni contrattuali. Come ad esempio scioperi, calamità naturali, guerre, etc.

In questi casi la parte che non può dare esecuzione al contratto per il verificarsi di una causa maggiore, non è ritenuta responsabile.

Hardship clause: cos’è

Alla clausola di forza maggiore, si affianca la hardship clause. Il termine hardship viene tradotto come “disagio”, “avversità”.

La hardship clause, pur fondandosi sui medesimi presupposti della forza maggiore, implica accadimenti che la rendono eccessivamente più onerosa, alterando sostanzialmente l’equilibrio economico del contratto.

Nell’attuale contesto pandemico e vista la sua diffusione su vastissima scala geografica, i rimedi offerti dalla hardship appaiono maggiormente adeguati. Tendendo alla risoluzione dei conflitti con salvaguardia di contratti e progetti di sviluppo d’impresa.

Ne abbiamo parlato con Giorgia Busnelli, avvocato e socio di Coresultant.

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109 risposte a “Emergenza covid-19 e provvedimenti internazionali”

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