“Breathing Space” Concept Note 3 On guidelines for the resolution of disputes following the 2020 pandemic

This Concept Note is a continuation of BIICL's "Breathing Space" series, which considers how the legal and business communities might respond to the COVID-19 pandemic in order to foster economic recovery. 

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, we build on this theme and propose a set of practical guidelines which might be adopted to encourage a more conciliatory approach to contractual disputes that may arise, and which seek to avoid and/or minimise protracted legal disputes, without prejudicing or altering parties' legal rights. The 'Guidelines' set out how corporates and particularly those who are conscious of Environmental, Social and Governance (ESG) requirements and their reputations can manage legal disputes responsibly.

These are practical guidelines that could be followed by business' in the event that Covid-19 impact gives rise to disputes, both in terms of potentially avoiding traditional formal dispute resolution processes and using other dispute resolution methods. They also focus on how to conduct legal disputes most constructively if these prove unavoidable. The guidelines are deliberately framed so that they can be used in all jurisdictions and legal systems.

The guidelines have been drafted by Helen Dodds, formerly Global Head of Legal, Dispute Resolution at Standard Chartered Bank, Guy Pendell of CMS Cameron McKenna Nabarro Olswang and Mr Justice Adam Johnson  of Herbert Smith Freehills and have had input from various BIICL senior members including Sir William Blair.