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The effects of covid-19 on construction projects continue to evolve as an increasing number of countries, including the UK, issue orders suspending construction projects.

While parties must comply with their contractual obligations when a project is shut down, they must also be forward looking; this includes reviewing their agreements to learn lessons from the effect of previous pandemics like covid-19 and other unforeseen circumstances.

Although not widely used in building contracts currently, the economic consequences of this pandemic and possible future 鈥渨aves鈥� could cause parties to seek to shift the risk of delay to their counterparty in the future by including a 鈥渉ell or high water鈥� (鈥淗OHW鈥�) clause. Such clauses describe an independent and absolute contractual obligation of a party to perform under an agreement without any contractual defense, including force majeure.