Climate change and contractual risks: between forecasting and the unpredictability of risk due to climate variation

Abstract

Climate change manifests itself in two ways: by the gradual change in climatic conditions, adverse to human activities, as well as dramatic, direct, extensive and serious events, such as storms, extreme temperatures, floods and droughts. The infrastructure developed by the State, in collaboration with individuals through concession contracts and public-private associations, is exposed to serious and extensive climatic events, as well as progressive climatic transformations, which compromise its stability and can cause the loss of usefulness of the aforementioned infrastructure. This article argues that, based on the case study of “4G” roads and their risk matrices, many of the road concessions that compromise important investments and the country's competitiveness are devoid of the foresight that the risk matrices of each contract, and in this way, climate change would lack management of the risk cycle and would be governed by the general regime of liability for unforeseen events and/or force majeure for these road concessions.