NEWSLETTER-2020-metin

7 COMMERCIAL LAW ded, which can be changed by agreement of the parties at any time according to their needs. Accordingly, in addition to the general rule to determine each particular case as to when the duration of the impediment is un- sustainable, the FM Clause 2020 suggests that, unless otherwise agreed, the contract may be terminated by either party if the duration of the impediment exceeds 120 days. By fixing a maximum duration, the Working Group added a new option to the formula exercised by Article 25 of the CISG, Section 8:103 of the Princip- les of European Contract Law, and Article 7.3.1 of the UNIDROIT Principles. Short Form The reason that led to creation of the Short Form is the fact that the FM Clause 2003 was preferred to be included in the contracts by way of reference, instead of full incorporation, due to its rather long and complex nature. The ICC Commercial Law and Practice Com- mission considered that reference to a clause outside of a contract is complicated and not user-friendly, and created the Short Form to be directly incorporated into contracts. The Short Form comprises the main elements of the long form, but does so in only three paragraphs. In order to prevent any discrep- ancies between the FM Clause 2020 and the Short Form, both texts employ the exact wording. The Short Form does not have paragraph headings and explanatory boxes, and some paragraphs are unified. In addition, some paragraphs are not addressed in the Short Form, such as the non-performance by third parties, notification, duty to mitigate, and unjust enrichment. Hardship Clause 2020 The main revisions in the 2020 Clauses relate to hardship. In the Hardship Clause 2003, only a termination option was available. Fear that the judge or arbitrator would adapt the contract in such a way that neither party would prefer played a role in shaping this drafting.