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Browsing by Author "Abdullayeva, Gulara"

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  • Abdullayeva, Gulara (2013)
    The aim of this research is to study the situation of unexpected events which render the performance under the contract much more difficult than originally planned or totally impossible to perform. The research includes the comparative study of different international instruments dealing with the unexpected change of circumstances, also the English and U.S. common law and the relevant case law. The study of the case law showed that though the preference by courts and arbitral tribunals is given to the principle that contracts should be kept, there have been numerous cases where the party has been exempted from contractual obligations under the change of circumstances and this should be regarded as a way to assure the fairness principle in contractual relations. The paper also examines the requirements which are necessary for exclusion of the performance under unexpected change of the circumstances. As a general principle, the occurrence of the unexpected event itself will not be sufficient for exempting a party from contractual obligations. Number of things need to be determined and taken into account when assessing whether the party can be excused for non-performance. Furthermore, as regards to the effects of such events the balance of interests is followed by giving the affected party the right to choose the relevant remedy. Taking into account the complexity of modern contractual relationships, it is preferable that parties follow the principles of good faith and cooperation which lies in the centre of renegotiations. However, in the case of failure to negotiate the parties can “pass” to courts the right to determine whether adjustment or termination will conclude the contractual relationships.