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Breathing Space- Concept Notes on the effect of the pandemic on commercial contracts

The Breathing Space Concept note arose out of a meeting on 7 April 2020 hosted by the British Institute of International and Comparative Law, attended by Lord Phillips of Worth Matravers, Lord Neuberger of Abbotsbury, Sir David Edward, Sir William Blair, Professor Spyros Maniatis, Professor Malik Dahlan and Keith Ruddock.

It was felt that in the emergency situation created by the COVID-19 pandemic, a universal challenge, a debate should happen as a matter of priority on the necessary contribution of the law to safeguard commercial activity, minimise disruption to supply chains, and ameliorate the adverse effects of a "plethora of defaults", by encouraging a legal environment which is conducive to optimism and a global recovery.  

Following the meeting the group called for a 'Breathing Space' in commercial contract disputes arising from the Covid-19 pandemic. Their thinking was outlined in Concept Note 1.

Drafted by Sir William Blair, Professor Eva Lein, Professor Louise Gullifer and Judy Fu, Concept Note 2 looked more closely at the private law response to the pandemic, specifically in the context of contractual disputes, and how existing legal principles may be applied in the context of COVID-19 related disputes, as well as how existing dispute resolution mechanisms may effectively be used to achieve negotiated solutions.

In Concept Note 3, a set of practical guidelines ('BIICL Guidelines') are proposed. Drafted by Helen Dodds, Guy Pendell and Justice Adam Johnson QC, the BIICL Guidelines set out how companies and particularly those who are conscious of Environmental, Social and Governance requirements and their reputations can manage legal disputes responsibly. The BIICL guidelines are deliberately framed so that they can be used in all jurisdictions and legal systems. To this end, they have been translated into several languages.

Concept Note 1 'Breathing space'

Concept Note 2 On the effect of the 2020 pandemic on commercial contracts

Concept Note 3 'The BIICL Guidelines' (English) 

日本語                                Français 

Español                              中文版 

Deutsch                              हिंदी                                   

 عربى                                     русский

BIICL welcomes your comments on Concept Note 3  

Smarter Approaches to Dispute Resolution podcast series

BIICL and the Centre for Effective Dispute Resolution (CEDR)  have collaborated on a new podcast series on smarter approaches to dispute resolution. This series brings together BIICL's 'Breathing Space Series' and CEDR's vision of 'Better conflicts, better outcomes leading to a better world'.

While looking at issues relating to the COVID-19 pandemic, the series also looks at evolving attitudes to dispute resolution, future trends and advice from leading conflict specialists. Listen to the Podcast on Spotify , Apple  and Google. 

Podcast 1

  • The background to the 'Breathing Space' project
  • An overview of the three 'Breathing Space' concept notes
  • The overarching changes in approaches to dispute resolution following the COVID-19 pandemic
  • Future developments and trends in commercial dispute resolution

It Features:

  • Helen Dodds, Director of Legal UK and Member of LawTech UK Commercial Dispute Resolution Taskforce
  • Dr Karl Mackie CBE, Founder President & Mediator, CEDR
  • The Rt. Hon. Lord Neuberger of Abbotsbury, former President of the UK Supreme Court and One Essex Court
  • Ben Thomson, CEDR

Listen to Podcast 1  

Podcast 2 

  • Rise in the uptake of formal proceedings following pandemic
  • Realities of going to court
  • Options open to parties instead of issuing formal proceedings
  • BIICL advice on supporting contractual relationships
  • Thoughts on Mandatory Mediation

It features:

  • Helen Dodds, Director of LegalUK and Member of LawTech UK Commercial Dispute Resolution Taskforce
  • Sir William Blair, Barrister & Arbitrator at 3 Verulam Buildings
  • Lauren McGuirl Director of Commercial Disputes at CEDR

Listen to podcast 2  

Podcast 3

  • Relationship preservation
  • Who should be involved in negotiations
  • Role of third parties in negotiations and dispute resolution processes
  • Impact of the pace of proceedings.

Podcast features

  • Lauren McGuirl, Director of Commercial Disputes at CEDR
  • Sapfo Constantatos, Senior Legal Counsel, Standard Chartered Bank
  • Guy Pendell, Disputes Partner and Solicitor Advocate, CMS

Listen to Podcast 3 

Podcast 4

  • Legal proceedings, both going to court and arbitration
  • Interaction between formal legal proceedings and ADR
  • Virtual proceedings and environment supporting smarter dispute resolution

Podcast Features

  • Paula Hodges KC, Head of Global Arbitration Practice, Herbert Smith Freehills
  • Mr Justice Adam Johnson, High Court Judge
  • Eve Pienaar, CEDR Mediator, Trainer & Lawyer
  • Ben Thomson (facilitator), CEDR

Listen to podcast 4 

Video commentary and clips from the all the podcast contributors can be found on our YouTube channel.

Watch the Video commentaries 

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