Meneja Wa Makampuni
JF-Expert Member
- Jul 7, 2020
- 7,050
- 9,434
Nimeusoma mkataba wa bandari kuna mapungufu machache tu yanayoweza kurekebishika. Watanzania tuondoe wasiwasi tushauri kwa lugha nzuri. Mfano kama ikiwezekana ibara ya 23 ingefanyiwa maboresho ili isituminye sana. Ibara inasema hivi:
ARTICLE 23
DURATION AND TERMINATION
1. Subject to paragraph 2 of this Article 23, this Agreement shall remain in force until occurrence of one of the following: (i) permanent cessation of all Project Activities; or (ii) the expiration of all of the HGAs and all of the Project Agreements (subject to any additions or extensions thereto) and the definite resolution of disputes, if any, thereunder.
2. In the event that a HGA is terminated prior to expiration of its term, this Agreement shall remain in force for the time, and to the extent, required by any State Party or by the Project Company to assert any rights arising from, protect any interests endangered by or bring any proceeding resulting from termination of the HGA. Termination or expiry of a HGA shall not affect any accrued rights, liabilities or remedies of any party under such HGA or the related Project Agreements or this Agreement.
3. The termination of this Agreement shall be subject to the prior consent of the State Parties, such consent is not to be unreasonably withheld.
4. The State Parties shall not be entitled to denounce, withdraw from, suspend or terminate this Agreement in any circumstances, including in the event of material breach, fundamental change of circumstances, severance of diplomatic or consular relations, or any other causes recognised under international law. Notwithstanding the foregoing, any dispute between State Parties in respect of such circumstances shall be dealt with in accordance with the requirements of Article 20 of this Agreement.
Nilichokielewa hapo ni hiki:
The Article 23 of the Agreement lies in the lack of clarity and potential limitations regarding the termination of the agreement.
1. Lack of defined termination criteria; The agreement states that it shall remain in force until the occurrence of specific events, such as the permanent cessation of all project activities or the expiration of all Host Government Agreements (HGAs) and Project Agreements. However, the agreement does not provide clear criteria or guidelines for determining when these events have taken place, which could lead to ambiguity and potential disputes.
2. Reliance on termination of HGAs; According to paragraph 2 of Article 23, if a HGA is terminated before its term expires, the agreement remains in force for a certain period to allow the assertion of rights, protection of interests, or the initiation of legal proceedings resulting from the termination. This provision creates dependency on the termination of HGAs and does not account for other circumstances that may warrant the termination of the agreement.
3. Limited termination consent; The agreement stipulates that the termination of the agreement requires the prior consent of the State Parties, which should not be unreasonably withheld. While this provision seems reasonable, the lack of clarity on what constitutes "unreasonable" withholding of consent could potentially lead to disagreements and delays in the termination process.
4. Restriction on termination rights; Article 23(4) explicitly states that the State Parties are not entitled to denounce, withdraw from, suspend, or terminate the agreement under any circumstances, including material breach, fundamental change of circumstances, or severance of diplomatic or consular relations. This provision severely limits the termination rights of the State Parties and may restrict their ability to address significant issues that arise during the course of the agreement.
If possible, Article 23 should be revised and improved because it may potentially lead to disputes and challenges in the event of termination or expiration of the agreement.
ARTICLE 23
DURATION AND TERMINATION
1. Subject to paragraph 2 of this Article 23, this Agreement shall remain in force until occurrence of one of the following: (i) permanent cessation of all Project Activities; or (ii) the expiration of all of the HGAs and all of the Project Agreements (subject to any additions or extensions thereto) and the definite resolution of disputes, if any, thereunder.
2. In the event that a HGA is terminated prior to expiration of its term, this Agreement shall remain in force for the time, and to the extent, required by any State Party or by the Project Company to assert any rights arising from, protect any interests endangered by or bring any proceeding resulting from termination of the HGA. Termination or expiry of a HGA shall not affect any accrued rights, liabilities or remedies of any party under such HGA or the related Project Agreements or this Agreement.
3. The termination of this Agreement shall be subject to the prior consent of the State Parties, such consent is not to be unreasonably withheld.
4. The State Parties shall not be entitled to denounce, withdraw from, suspend or terminate this Agreement in any circumstances, including in the event of material breach, fundamental change of circumstances, severance of diplomatic or consular relations, or any other causes recognised under international law. Notwithstanding the foregoing, any dispute between State Parties in respect of such circumstances shall be dealt with in accordance with the requirements of Article 20 of this Agreement.
Nilichokielewa hapo ni hiki:
The Article 23 of the Agreement lies in the lack of clarity and potential limitations regarding the termination of the agreement.
1. Lack of defined termination criteria; The agreement states that it shall remain in force until the occurrence of specific events, such as the permanent cessation of all project activities or the expiration of all Host Government Agreements (HGAs) and Project Agreements. However, the agreement does not provide clear criteria or guidelines for determining when these events have taken place, which could lead to ambiguity and potential disputes.
2. Reliance on termination of HGAs; According to paragraph 2 of Article 23, if a HGA is terminated before its term expires, the agreement remains in force for a certain period to allow the assertion of rights, protection of interests, or the initiation of legal proceedings resulting from the termination. This provision creates dependency on the termination of HGAs and does not account for other circumstances that may warrant the termination of the agreement.
3. Limited termination consent; The agreement stipulates that the termination of the agreement requires the prior consent of the State Parties, which should not be unreasonably withheld. While this provision seems reasonable, the lack of clarity on what constitutes "unreasonable" withholding of consent could potentially lead to disagreements and delays in the termination process.
4. Restriction on termination rights; Article 23(4) explicitly states that the State Parties are not entitled to denounce, withdraw from, suspend, or terminate the agreement under any circumstances, including material breach, fundamental change of circumstances, or severance of diplomatic or consular relations. This provision severely limits the termination rights of the State Parties and may restrict their ability to address significant issues that arise during the course of the agreement.
If possible, Article 23 should be revised and improved because it may potentially lead to disputes and challenges in the event of termination or expiration of the agreement.
