While the application of the law may vary from state to state, courts have routinely found that hellish or flood-like provisions are applicable in contracts negotiated by demanding commercial parties, even if one party argues impossibility of performance or frustration with the purpose. These judgments are motivated by the fact that the parties have concluded a contract specifically for the transfer of all risks through the supply of infernal water or high water. The requirement for a buyer to do whatever is necessary to obtain an antitrust authorization, well known as the “Hell or High Water” provision, played an important role in a merger case recently decided by the Court of Chancery in Delaware. The Case, Akorn Inc. v. Although currently not widespread in construction contracts, the economic consequences of this pandemic and possible future “waves” could lead the parties to try to transfer the risk of delay to their counterparty in the future by inserting a “hell or flood” clause (HOHW). These clauses describe an independent and absolute contractual obligation of a party to comply under an agreement without contractual defence, including force majeure. As lawyers involved in the negotiation of mergers, acquisitions or other transactions are aware, provisions that allocate the risk of antitrust between buyer and seller or between joint venture (JV) partners are a common feature of merger and JV agreements. Such provisions are increasingly important in today`s aggressive anti-dominant environment around the world. They can vary greatly in detail and substance. For transactions with or without a low risk of antitrust, these provisions may require only the cooperation of the parties in obtaining the authorisation of the competent antitrust authorities, or they may impose any risk on the buyer who does not perceive such a provision as “giving” in the absence of a real risk of antitrust. .
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