TR-TR 
EN-US 
Canadian government has recently announced that defense exports to Turkey had suspended. The Turkish government reacted to the restrictions stating that Canada has failed as a NATO member and expert restrictions are deemed as double standard.
Far from the political discussions, the local executives took quick action against restrictions by Canada and Turkey’s Presidency for Defense Industries has announced that CATS cameras installed and used on combat UAVs are going into serial production and efforts are continuing to develop a higher model by ASELSAN.
Force Majeure for Existing Contractors?
No doubt that this is the question that existing Canadian contractors seek the answer. There are pitfalls inherent in reaching out to a decision regarding contract suspension and termination in defense contracts in Turkey. Giving an example that a clause that purports to claim force majeure in most cases is subject to acceptance of the authority unlike the commercial contracts. The similar can be said for impossibility of performance that would not always fall under force majeure. In government contracts law perspective the authority may recognize similar circumstances in case such circumstances have the following aspects;
a) The incident did not arise out of contracting parties’ commitment or omission,
b)The incident constitutes an obstacle in fulfilling the contractual obligations;
c) The contractor could not afford to remove such obstacle;
d) The contractor has notified the contracting entity in writing within twenty days as of the date which the force majeure has occurred;
e) The incident has been documented / certified by competent authorities.
No question that the incident shall be unforeseeable and unavoidable in this respect however this is not enough to claim a force majeure for companies suffering export restrictions as to government contracts law entitles the authority to accept or reject the “force majeure” claim at its sole discretion.
Moreover, there are few subjects that needs to be more extensively analysed than the wording of force majeure in defense contracts. We have experienced in many cases that export licenses or reselling authorizations of a sole source company were at the center of legal discussions with respect to force majeure in litigation. Clearly, whether an authority or defense contractor enters a defense acquisition contract on assumption of that there is no legal restriction to supply the work or service subject to the contract. However, in some cases a global framework of rules and developments on the export control has impact and the contractors may expect more flexibility for the conditions restricting themselves to sell to the government and further changes in a continuously shifting environment. Turkish Supreme Court addresses the term ‘prudent merchant’ in many cases where ended with litigation. The rulings are unlikely that independent contractors have reasonable ground to foresee such restrictions. In addition, in some cases, the rulings refer that assertation of force majeure in this nature has no legal ground as those constitute the conditions precedent or conditions subsequent in long term supply contracts rather than force majeure. Several strategies shall be discussed to mitigate the risk associated with force majeure in defense contracts. Although the best-fit does not meet the commercial practical expectations in all cases, it is obvious that there is no better fit other than negotiating with the counter party in cases where the counter party has the sole discretion to decide on existence of force majeure.
Şafak Herdem
