The Covid19 pandemic and resulting lockdown has created massive business disruption. As a result, many companies are now looking at their contracts and, in particular, their force majeure provisions as well as doctrines such as frustration, substantial performance and quantum meruit for solutions. At the same time businesses are considering how to respond to such claims by relying on arguments such as repudiation, fundamental breach claims and enforcement of time stipulations.
The Covid19 Contracts & Commercial Team at PanLaw are experts on force majeure as well as the doctrines of frustration, repudiation, substantial performance and the other applicable doctrines. We can advise on the impact of Covid19 on the contract as a whole. We can assist on issues such as the applicability of force majeure, extensions of time, recovery of increased costs as well as termination and relief from termination consequences.
The PanLaw Covid19 Contracts & Commercial Team can advise on the burden of establishing the causal link between the Covid19 event and inability to perform and the evidence needed to establish that link. We can advise on issues such as whether non-performance or mere hinderance is applicable; the question of notice requirements under the contract; any applicable time-bars in the contract; and mitigation requirements.
Many companies have reacted protectively by issuing “protective” or “rolling” force majeure notices without taking into account the impact or likely response of the contract counterparty, whilst others have issued delay notices that flout express regulations already existing in law. Our Covid19 Contracts & Commercial Team can advise and assist on the applicability of protective, reactive, rolling and consequential notices, mitigation, time extension and contract repudiation issues as well as additional costs and termination provisions and how parties bear losses. We can also advise on refund obligations under contracts. The Team can also advise on the legal obligations and liabilities under contracts where there are “change in law” provisions, and the impact of the Covid19 laws passed by Governments and how these have impacted on the statutory and contractual matrix (including Covid19 regulations such as travel restrictions, compulsory quarantine and self-isolation measures).
The Covid19 Contracts & Commercial Team can also advise, in the absence of an express force majeure provision, about the doctrine of frustration and the impact of this most draconian measure, which, if proven, means that parties are no longer bound to perform the obligations arising at a future date.
The Covid19 Contracts & Commercial Team can also advise on the legal obligations and liabilities of Directors when shareholders look to recover the loss of shareholder value due to lack of effective contingency planning by the Board as well as contributory obligations from third parties such as solicitors who have inadequately drafted force majeure clauses or used out of date boilerplate clauses even in the face of increased warnings about pandemic risk.
Whatever your contract concerns about pandemic, the PanLaw Covid19 Contracts & Commercial Team of experienced contract lawyers are available to assist.
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