Construction Force Majeure in UAE: Pandemic and Unforeseen Events

By Nour Attorneys / 26 August 2025

Construction Force Majeure in UAE: Pandemic and Unforeseen Events

The outbreak of the COVID-19 pandemic has profoundly affected the construction industry worldwide, and the United Arab Emirates is no exception. Construction projects, which inherently involve complex coordination and tight schedules, have faced unprecedented structural shifts. In the UAE, the invocation of force majeure clauses has become a focal point for parties seeking to neutralize liabilities arising from delays and performance failures triggered by the pandemic and related government-imposed restrictions.

Understanding force majeure within the UAE legal framework requires a detailed examination of the Civil Code provisions alongside contractual force majeure clauses specifically engineered for construction contracts. The pandemic has exposed structural vulnerabilities in contract drafting and enforcement, revealing asymmetric risks between contractors and employers. Parties must architect their contractual and dispute resolution strategies with precision to manage adversarial claims effectively.

This article deploys a comprehensive legal analysis of construction force majeure in the UAE, focusing on the pandemic’s impact and unforeseen events. It provides strategic guidance on when and how force majeure can be invoked, the scope of government orders, and practical steps to engineer force majeure claims that withstand scrutiny. This insight is crucial for stakeholders engaged in UAE construction projects seeking to mitigate risks and preserve contractual equilibrium amid ongoing uncertainties.

Related Services: Explore our Force Majeure Clause Uae and Construction Contract Uae services for practical legal support in this area.

LEGAL FRAMEWORK OF FORCE MAJEURE UNDER UAE LAW

The concept of force majeure in the UAE is principally governed by Articles 273 to 282 of the UAE Civil Code (Federal Law No. 5 of 1985). Unlike some jurisdictions that codify force majeure as a standalone statute, the UAE Civil Code integrates it within the broader legal principles regulating contracts and obligations. Article 273 defines force majeure as an extraordinary event that is unforeseeable, unavoidable, and external to the parties, which neutralizes liability for non-performance.

This statutory framework requires careful interpretation in construction contracts, where the delineation between force majeure and mere hardship or commercial inconvenience is critical. Courts and arbitral tribunals in the UAE apply a strict test, demanding that the event must have been beyond the control of the contracting parties and that it must have directly prevented performance. Thus, the pandemic’s classification as a force majeure event hinges on demonstrating a direct causal link between government orders, supply chain structural shifts, or labor shortages and the failure to perform.

Moreover, Article 273 stipulates that force majeure suspends obligations during the period of force majeure but does not automatically terminate the contract unless the event persists for an extended period, leading to an impossibility of performance. This structural provision mandates that parties engineer their contractual force majeure clauses to allocate risks clearly and define procedures for notice, mitigation, and extension of time, thereby reducing asymmetric risks during adversarial disputes.

Differentiating Force Majeure from Hardship and Frustration

It is critical to understand that force majeure is distinct from other legal doctrines such as hardship or frustration of contract. Hardship refers to situations where performance becomes excessively onerous but remains possible, while frustration involves an event that fundamentally changes the nature of contractual obligations. Unlike some common law jurisdictions, UAE law does not explicitly recognize frustration but allows contract termination under force majeure when performance is impossible.

The pandemic has often raised questions about whether parties can invoke force majeure or claim hardship. The structural distinction requires the affected party to demonstrate that the pandemic and related measures made performance objectively impossible or illegal, not merely difficult or expensive. This legal nuance is essential to avoid adversarial claims where one party alleges force majeure and the other contends that only hardship exists, which does not excuse performance under UAE law.

Judicial and Arbitral Trends in UAE Force Majeure Cases

Recent judicial and arbitral decisions in the UAE have engineered a more nuanced understanding of force majeure claims linked to the pandemic. UAE courts have generally accepted government lockdowns and travel bans as legitimate force majeure events but have been careful to assess causation and mitigation efforts rigorously. For example, tribunals have scrutinized whether contractors took reasonable steps to re-sequence works or source alternative materials and labor.

These decisions reflect a structural approach that requires parties to substantiate claims with detailed evidence rather than relying on broad pandemic-related assertions. The adversarial nature of many disputes has prompted courts to emphasize contractual clarity and procedural compliance, underscoring the importance of well-architected force majeure clauses.

CONTRACTUAL FORCE MAJEURE CLAUSES IN UAE CONSTRUCTION AGREEMENTS

Construction contracts in the UAE typically include force majeure clauses that expand upon the statutory provisions and tailor the force majeure definition to the construction sector’s specificities. These clauses often enumerate specific events—such as pandemics, epidemics, government-imposed lockdowns, natural disasters, and labor strikes—to mitigate ambiguity. However, the drafting quality and scope of such clauses can either deploy defense mechanisms effectively or expose parties to protracted disputes.

A well-engineered force majeure clause should require prompt written notice of the force majeure event and oblige the affected party to take reasonable steps to neutralize the event’s impact. This duty to mitigate is essential in construction projects, where delays can cascade into structural project failures and amplified costs. For instance, contractors must demonstrate anticipatory measures such as re-sequencing works, sourcing alternative materials, or mobilizing additional labor to maintain progress despite pandemic constraints.

Furthermore, clauses should articulate the consequences of force majeure, including extensions of time, relief from liquidated damages, and suspension of payment obligations. UAE courts respect parties’ autonomy to contractually define these consequences, but they also scrutinize the clause’s clarity and consistency. An adversarial dispute often arises when one party claims force majeure to escape penalties, while the other argues that the event did not entirely prevent performance or that mitigation efforts were insufficient. Hence, it is critical to architect contract provisions that anticipate such asymmetric positions and establish clear procedural rules for dispute resolution.

Key Elements to Include in Force Majeure Clauses

To engineer effective force majeure clauses in construction contracts, the following structural elements should be incorporated:

Definition of Force Majeure Events: Explicitly list pandemics, epidemics, government orders, labor strikes, natural disasters, and other relevant unforeseen events. This prevents ambiguity and narrows the scope of disputes.
Notice Requirements: Specify the timeframe and manner of notice (e.g., written notice within 7 days of the event), detailing the nature of the event, its impact on performance, and expected duration.
Mitigation Obligations: Oblige the affected party to take reasonable and documented steps to minimize delays and damages. This neutralizes adversarial claims of negligence.
Extensions of Time: Provide mechanisms for extending project timelines commensurate with the duration of the force majeure event, including any necessary procedures for approval.
Suspension of Payment Obligations or Adjustments: Clarify whether payments can be suspended or adjusted during the force majeure period, including provisions for cost sharing if applicable.
Termination Rights: Outline conditions under which prolonged force majeure allows either party to terminate the contract without penalties.
Dispute Resolution: Include escalation processes such as negotiation, mediation, and arbitration tailored to construction disputes.

Examples of Adversarial Risks Arising from Poorly Drafted Clauses

An example of asymmetric and adversarial risk can be seen where a contractor claims force majeure due to COVID-19, but the employer alleges the contractor failed to provide timely notice or did not pursue mitigation measures, such as sourcing materials locally. The lack of clear contractual timelines or mitigation clauses can lead to protracted disputes, delay claims, and even litigation, increasing project costs and reputational risks.

Another scenario involves ambiguous clauses that do not specifically mention pandemics or government restrictions. In such cases, parties may contest whether COVID-19 falls within the force majeure definition, leading to adversarial interpretations and heightened litigation risks.

THE PANDEMIC IMPACT AND GOVERNMENT ORDERS: A STRUCTURAL CHALLENGE

The UAE government’s response to the COVID-19 pandemic included a series of decrees and orders that significantly impacted construction activities. These ranged from worksite closures, travel bans, labor quarantines, to supply chain interruptions. Such measures constitute externally imposed constraints that parties may invoke as force majeure events. However, the structural challenge lies in the temporary and evolving nature of these orders, which complicates the assessment of causation and foreseeability.

Legally, government orders carry substantial weight in force majeure claims, as they represent actions beyond the parties’ control. Yet, the adversarial complexity arises when determining the temporal scope and geographical applicability of these orders. For example, a contractor’s inability to procure materials due to international transport restrictions may be outside direct government mandates but still linked to pandemic-related structural shifts. This asymmetric causal chain demands an engineering of evidence and contractual interpretation that can withstand judicial or arbitral scrutiny.

In addition, the pandemic exposed the need to architect contracts that specifically address pandemics and related government interventions. Many pre-pandemic contracts lacked explicit pandemic clauses, leading to adversarial disputes over whether COVID-19 qualifies as a force majeure event. In response, some UAE government authorities and industry bodies issued frameworklines to clarify the application of force majeure in the pandemic context, which parties should deploy to engineer their claims and defenses.

Government Circulars and Their Legal Weight

During the pandemic, the UAE Ministry of Justice, Dubai Municipality, and other authorities issued circulars and guidance notes clarifying that COVID-19 and associated government measures may constitute force majeure events. While these circulars are not legally binding, courts and arbitrators increasingly consider them persuasive, especially when interpreting ambiguous contract clauses.

For example, Dubai Municipality’s circular on construction activities during lockdown periods provided procedural guidance that parties can use to substantiate force majeure claims. Such documents facilitate engineer the evidentiary basis for claims by referencing official government positions, aiding parties in neutralizing adversarial arguments that pandemic-related delays were foreseeable or avoidable.

Supply Chain structural shifts as an Indirect Force Majeure Factor

The pandemic’s impact on global supply chains introduced an asymmetric challenge in force majeure claims. While government orders may not have directly prohibited construction activities, restrictions on imports, transport, and manufacturing delayed critical materials. This indirect effect requires parties to architect evidence demonstrating how supply chain structural shifts were unforeseeable and unavoidable and how they affected contractual performance.

Courts will examine whether contractors took reasonable steps to source materials locally or from alternative suppliers. Failure to do so can lead to denial of force majeure protection. This places a structural obligation on contractors to maintain contingency plans and document mitigation efforts comprehensively.

STRATEGIC APPROACHES TO FORCE MAJEURE CLAIMS IN UAE CONSTRUCTION

Navigating force majeure claims in UAE construction contracts requires a strategically architected approach. First, parties must ensure strict compliance with contractual notice requirements, as failure to provide timely notification can result in waiver of force majeure rights. Notices should detail the specific pandemic-related events, their direct impact on contractual obligations, and the anticipated duration.

Second, parties should engineer mitigation strategies that demonstrate good faith and anticipatory management of the structural shift. This includes documenting all steps taken to overcome or reduce delays, such as rescheduling works, engaging alternative suppliers, or adapting workforce deployment. Such documentation is crucial for neutralizing adversarial claims alleging negligence or bad faith.

Third, in cases where performance is impossible or impractical over an extended period, parties should carefully consider invoking contractual termination provisions or negotiating equitable solutions. UAE law permits termination if force majeure persists to the extent of making performance impossible. However, termination entails structural risks, including loss of investments and reputational damage, which must be balanced against potential benefits.

Lastly, dispute resolution mechanisms must be engineered to handle force majeure claims efficiently. Given the adversarial nature of such disputes, parties are encouraged to include escalation clauses, mediation, and arbitration provisions tailored for construction disputes under UAE law. This approach aligns with Nour Attorneys’ expertise in dispute resolution and international arbitration, enabling clients to neutralize risks and enforce rights effectively.

Engineering Effective Notice Procedures

The timing and content of force majeure notices are often contested in adversarial disputes. It is therefore advisable to deploy a structured notice procedure that includes:

Immediate written notification upon occurrence of the force majeure event.
Clear identification of the event and its classification under the contract.
Detailed description of how the event impacts contractual obligations.
An estimate of the expected duration and the steps taken to mitigate the impact.
Regular updates as circumstances evolve.

Such structured communication not only complies with contractual requirements but also provides a factual basis for neutralizing disputes.

Documentation and Record-Keeping

rigorous documentation is the backbone of any successful force majeure claim. Parties should maintain records including:

Government orders and official circulars.
Communication with suppliers and subcontractors regarding delays.
Internal reports on workforce availability and site conditions.
Logs of alternative sourcing or rescheduling efforts.
Financial records evidencing additional costs incurred.

This body of evidence engineers a compelling claim and reduces the asymmetric bargaining power of adversarial parties disputing the claim’s validity.

Negotiating Equitable Adjustments

In many cases, parties can engineer solutions outside litigation by negotiating extensions of time, cost-sharing arrangements, or contract amendments. Such negotiated solutions can neutralize adversarial dynamics and preserve business relationships. UAE law encourages parties to act in good faith, and the pandemic context provides a compelling rationale for equitable adjustments.

PRACTICAL GUIDANCE FOR CONTRACT DRAFTING AND RISK MANAGEMENT

To neutralize asymmetric risks and adversarial challenges arising from unforeseen events like pandemics, parties must architect their contracts with a structural focus on force majeure and risk allocation. This includes deploying precise language that defines force majeure events, specifying notice periods, and detailing the procedural steps to be followed upon occurrence.

Contractors and employers should negotiate force majeure clauses that balance risk fairly and provide mechanisms for extension of time and cost adjustments. Importantly, clauses should mandate continuous communication and cooperation, enabling parties to engineer solutions collaboratively rather than escalating disputes.

Additionally, integrating force majeure provisions with other contractual terms such as delay liquidated damages, termination rights, and insurance obligations is necessary to build a cohesive risk management framework. Consulting with legal advisors specializing in construction law and contract drafting ensures that contracts are engineered to withstand the structural challenges posed by asymmetric and adversarial risks.

Structuring Risk Allocation to Minimize Asymmetry

Force majeure events inherently create asymmetric risks, where one party bears disproportionate burdens. To address this, contracts should engineer balanced risk-sharing models, such as:

Shared cost and delay responsibilities: Where costs and delays resulting from force majeure are apportioned fairly.
Caps on liquidated damages: To prevent excessive penalties in pandemic-related delays.
Defined thresholds for force majeure duration: After which termination rights activate, providing clarity and certainty.

Such structural provisions reduce adversarial tensions and facilitate smoother project execution.

Incorporation of Pandemic-Specific Clauses

Given the pandemic’s enduring impact, contracts should explicitly include pandemics and epidemics in force majeure definitions. Furthermore, clauses can be engineered to address:

Health and safety compliance requirements: Aligning with government directives.
Remote work or virtual coordination allowances: To maintain progress where physical presence is restricted.
Contingency planning obligations: Requiring parties to maintain updated risk assessments and response plans.

These provisions facilitate engineer resilience into contracts, reducing future adversarial disputes.

Insurance and Force Majeure

Insurance policies, such as business interruption or delay-in-start-up coverage, can play a complementary role in managing force majeure risks. Contracts should engineer requirements for insurance coverage that aligns with potential force majeure events, including pandemics. Coordination between contractual provisions and insurance claims enhances risk mitigation and financial recovery options.

CONCLUSION

The COVID-19 pandemic has underscored the critical importance of force majeure in UAE construction contracts, revealing structural gaps and asymmetric risks that require strategic legal responses. Under UAE Civil Code provisions and carefully architected contractual clauses, force majeure operates to neutralize liabilities arising from unforeseeable and unavoidable events, including government orders linked to the pandemic.

To deploy effective force majeure claims, parties must engineer precise contractual language, comply strictly with notice and mitigation requirements, and adopt strategic dispute resolution mechanisms. Navigating the adversarial terrain of force majeure demands a military-precision approach in contract drafting and enforcement, ensuring that risks are balanced and claims are substantiated with rigorous evidence.

Nour Attorneys stands ready to architect comprehensive legal solutions to facilitate clients manage construction force majeure issues in the UAE. Our expertise in construction law, real estate law, and dispute resolution enables clients to engineer strategies that neutralize adversarial risks and protect their contractual interests amid ongoing uncertainties.

Disclaimer: This article is for informational purposes only and does not constitute legal advice.

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