Document Type : Original Article
Highlights
English summary of article:” Fundamental change in the circumstance in administrative contracts (Case study: Fundamental change of circumstances in upstream oil and gas contract in Iran and common law legal system)”
Upstream oil and gas contracts are among the most important administrative contracts that have technical, economic, social, legal, financial, political, environmental aspects. Long-term and continuous, the need to spend heavy costs and large capital, unknown reservoir and market behavior, high risk and uncertainty and complexity and uncertainty, multidimensionality of the contracted goods (oil and gas), the involvement of various private, public and Transnational corporations, governance and government issues, and the popularity of oil and gas resources in some resource-rich countries have all increased the risks of these contracts relative to public (non-oil) contracts and increased the likelihood of accidents, fundamental changes in the contract. In this study, by studying the upstream oil contracts in the common legal system of Iran and Iran, we have examined the status of the contract excuse for a fundamental change in the situation of these contracts in terms of concept and basis, conditions, features and effects and guarantee of enforcement of this excuse. The results show that this contractual excuse is recognized in the upstream contracts concluded in these two legal systems, and the nature and special features of these contracts make the legal management of the contract to be the main priority of the parties for the survival of the contract.
The unique features of upstream oil contracts, especially in relation to the nature of the activities and the long duration of the contract and the continuation of the obligations of the parties in this time period, guarantee the implementation of fundamental changes in these contracts different from other private contracts and non-administrative contracts. And international trade agreements and general non-oil contracts and even downstream oil contracts. Examining the provisions of oil contracts regulated in both the Commonwealth legal system in the United Kingdom and the United States and the Iranian legal system shows that in upstream oil and gas contracts, the parties to the contract try to manage the effects of change by anticipating internal contractual mechanisms and avoid Termination or termination of the contract is due to these changes. In other words, considering that the implementation period of some oil contracts, such as concession contracts, reaches more than 10 to 15 years, the possibility of various changes in the circumstances of the contract is not obvious and far from the mind.
Due to the constant changes in the circumstances at the domestic and international level, especially in the field of energy and oil and gas industry, there is a possibility of many changes in the terms of the contract over time in this period and major economic and political changes. , Legal, technical, environmental, financial and tax in this long period, especially in countries with oil resources, and mostly from developing countries is not far from the mind and is unlikely. Therefore, the application of conventional performance guarantees in non-oil contracts is not in line with the nature of oil contracts, and for these contracts, in the first place, by anticipating in-contract authorities such as committees and specialized contract management authorities, the impact of contractual changes in Adjusted various contractual aspects, including financial, cost, legal and legal dimensions. In the oil contracts of Commonwealth and Iran, these authorities are provided. In the next stage, conducting contractual negotiation and resolving the resulting changes and their effects on various aspects of the contract through negotiation, seems to be the correct logical and legal mechanism. The condition of contract renegotiation is envisaged in many oil contracts as an important solution to dispute resolution. Modification of the contract and distribution and division of damages due to the fundamental change of the situation between the parties to the contract is the most important guarantee of contract implementation related to the fundamental change of the situation that is provided in most upstream oil contracts and legal systems. The case is divided into contractual, legal and judicial adjustments. If a fundamental change in the contractual situation makes the implementation of oil contracts practically impossible and the effect of these changes is such that it is not possible to modify the contract and create an interruption in the contract, granting the right to terminate the contract to the parties can be considered a normal and appropriate performance guarantee. Distinguishes these contracts from private, non-administrative and non-oil contracts.
Emami, Seyed Hassan, (1363), Civil Law, Tehran, Islamic Bookstore, Volume 1..
Al-Sunnah, Abdul Razzaq Ahmad, (1952 AD), Al-Wasit Fi Sharh Al-Qanun Madani, Theory of the Face of Obligation in Public, Volume 1, Beirut, Darahiyah, Arab Heritage.
Habibzadeh, Mohammad Jafar, (2011), Principles governing government contracts, Isfahan, Jangal Publishing.
Tom Southington, (2001),"Impossibility of Performance and Other Excuses in International Trade", Publication of the Faculty of Law of the University of Turku, Private Law Publication Series B: 55..
Articles
Ahmadi Vastani, Abdul Ghani, (1363), Brief Description of Algerian Statements, Legal Journal of the Office of International Legal Services.
Andrew A. Schwartz,(2009),” A Standard Clause Analysis of the Frustration Doctrine and the Material Adverse Change Clause, LEGAL STUDIES RESEARCH PAPER SERIES, Working Paper Number 09 -15, University of Colorado Law school .
Behn, D. (2014). The confusing legal development of impossibility and changed circumstances. Retrieved from http:/www. dundee. acuk.com. [Accessed 3/30/2014.
Charles N. Brower and Mark D. Davis: (1988), "The Iran-United States Claims Tribunal after Seven Years a Retrospective View from the Inside", Arbitration Journal, vol.43.
Ebrahimi, Seyed Nasrollah and Oyar Hossein, Shadi, (2012), The effects of sanctions on the implementation of international contracts from the perspective of force majeure, two quarterly journals of civil law knowledge, first year, second number.1-17.
Elofson, John,(1996), “The Dilemma of Changed Circumastance in Contract Law: An Economic Analysis of the Foreseeblity and Superior Risk Bearer Tests” J. L. & Soc. Probs.1,p37.
Hans, Van Houtt, (1993), Changed Circumstances and Pacta Sunt Servanda, in: Gaillard (ed.), Transnational Rules in International Commercial Arbitration, (ICC Publ. No. 480, 4), Paris, at 105 et seq.p94.
INCKX, A. H. PUEL, (1986), Frustration, Hardship, Force Majeure, Imprévision, Wegfall der Geschäftsgrundlage, Unmöglichkeit, Changed Circumstances A Comparative study in English, French, German and Japanese Law, www.trans-lex.org.
John A, westberg, (1989), contract excuse in international business transaction: awards of the iran-united state claims tribunal, foreign investment law journal, vol4, No1.
Niklas Lindstrm, (2006), "Changed Circumstances and Hardship in the International Sale of Goods", Nordic Journal of Commercial Law, No1, p34.
Puelinckx, A.H., (1986), Frustration, Hardship, Force Majeure, Imprévision, Wegfall der Geschäftsgrundlage, Unmöglichkeit, Changed Circumstances, 3 J.Int'l Arb., No. 2, at 47 et seq.p56.
Rodrigo Momberg Uribe,( 2011),"Change of Circumstance in International Instruments of Contract Law. The Approach of CISG, PICC, PECL and DCFR".
Shafei, Mirshehbiz, Rahimi, Fathollah, (2015), Transformation and step-by-step evolution of international oil contracts of reciprocity in Iranian law, Auditing Knowledge, No. 58.
Thomas Roberts, (2003), ‘Commercial Impossibility and Frustration of Purpose: A Critical Analysis’ 16 Canadian Journal of Law and Jurisprudence.
Trends.E, (2007), Doctrine of frustration: Emerging trends, 2 the Journal of Legal Awareness. 171-142
Walde, T.W, (2008), Rneegotiating Acquired Rights in the Oil and Gas Industries: Industry and Political Cycles Meet the Rule of Law,Journal of Word Energy Law & Business, 1(1), 55-97.
Zaccaria, Elena Christine, (2005), the Effect of Changed Circumstances in International Commercial Trade, International Trade and Business Law, Vol4.
