The BIICL has received the backing of the former Supreme Court president for their recent guidelines on dealing with commercial disputes in the current climate. And the core message is: 'play nice'. Is that just a vain hope, or sound advice?
The guidelines recommend behaviours which support ongoing contractual relationships and lead to early resolution of disputes. They discourage behaviours which seek to take advantage of the current health, social and economic crisis. In particular, they highlight the benefits of early ADR, such as mediation, before the parties' positions have become entrenched in court action.
That's all fine - but will hard-pressed businesses (and their advisors) be listening? They certainly should, or their pre-action conduct may come back to haunt them: the courts have a wide discretion to award costs between the parties, and will take into account many of the same factors regarding pre-action conduct and protocol compliance when doing so...
Businesses have been urged to take a more conciliatory approach to legal disputes in the wake of Covid-19, or risk overwhelming the court system with a ‘deluge’ of litigation. In a new set of guidelines, the British Institute of International and Comparative Law encourages parties to ‘avoid and/or minimise protracted legal disputes’ and to embrace the ‘efficient resolution of disputes, in a manner likely also to benefit the wider public interest’. Earlier research by the institute suggested that Covid-19 could result in a ‘deluge of litigation and arbitration placing a strain on the system of international dispute resolution’. In the guidance, businesses are advised to consider alternative dispute resolution measures such as mediation; to adopt a ‘cards on the table approach’; and to avoid tactical practices intended to place other parties under unreasonable financial or time pressure.
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