NEWSLETTER-2020-metin

8 NEWSLETTER 2020 This time, theWorking Group kept the first and second paragraphs of the Hardship Clause 2003 as is, but provided new options, such as adaptation of contract in the event of the parties’ failure to agree on alternative contractual terms. The Working Group believed that including an option for adaptation by a judge or arbitrator may act as an incentive for the parties to agree to alternative terms by themselves in order to avoid third party intervention. Taking into consideration the global trend towards attempting to maintain the contract where possible (favor contractus) , the Hard- ship Clause 2020 provides three alternatives: provided that the parties are unable to agree upon alternative contractual terms: (i) The party invoking the hardship clause may terminate the contract, but cannot request adaptation by the judge or arbitrator without the agreement of the other party (Option 3A); (ii) Either party may request the judge or arbitrator to adapt the contract with a view to restoring its equilibrium, or to terminate it, as appropriate (Option 3B); and (iii) Either party may request the judge or arbitrator to declare the termination of the contract (Option 3C). • Option 3A is the same as the solution of the Hardship Clause 2003, which provides that the party invoking the hardship clause is entitled to terminate the contract. • Option 3B provides for either party to request the judge or arbitrator to adapt or terminate the contract, as appropriate, as allowed for under various national laws, as well as the UNIDROIT Principles. An approach similar to that of the UNIDROIT Principles will prevent any possible discrepan- cies within the contract in terms of hardship situations. • Option 3C is a modified version of the solution of the Hard- ship Clause 2003 and the new Option 3A. The Working Gro- up considered that termination by the invoking party may be arbitrary and could be misused and, therefore, preferred to involve the judge or the arbitrator in the termination so that either can assess the burdensome conditions that may lead to termination of the contract, since termination should be the last resort.