NEWSLETTER-2020-metin

5 COMMERCIAL LAW three conditions must be established, together. There is no difference between the FM Clause 2003 and the FM Clause 2020 in establishing these conditions. The FM Clause 2020 maintains the system introduced through the FM Clause 2003 for non-performance by third parties. This provision establishes its basis in Article 79(2) of the United Nations Convention on Contracts for the International Sale of Goods (“CISG”). The party invoking the force majeure must prove that the conditions set forth in the first paragraph of the FM Clause 2020 are established with respect to itself, and with respect to the third party. Presumed Events of Force Majeure Just like the FM Clause 2003, the FM Clause 2020 contains a list of events that are presumed to fulfil the conditions of being beyond the relevant party’s reasonable control, and reasonably unforeseeable. The working group that drafted the 2020 Clauses (“Working Group”), which I had the privilege to be part of, believed that inclusion of a list is more user-friendly and less complicated for SMEs, and provides predictability for users who are not accustomed to drafting these types of clauses in their contracts. If any event listed is realized, the affected party is released from the obligation to prove that this event is beyond its reasonable control, and could not be reasonably foreseen at the time of conclusion of the contract. Therefore, the affected party must prove only that the effects of this event could not have been reasonably avoided or overcome. If an event is not listed, the party invoking such event as force majeure must establish all three conditions set forth in the first paragraph of the FM Clause 2020. In the FM Clause 2020, the following events are not listed, con- trary to the FM Clause 2003: Armed conflict or serious threat of the same (including, but not limited to hostile attack, blockade, military embargo), civil commotion or disorder, mob violence, act of civil disobedience, curfew restriction, and compulsory acquisition. On the other hand, taking the recent global developments into account, cur- rency and trade restrictions, as well as embargos and sanctions, are