The British Institute of International and Comparative Law has published a concept note in which they predict a surge in litigation. With this, claimants are likely to rely on default clauses in contracts and defendants are likely to rely on arguments that they are excused from performance.
The BIICL, which is an independent research centre made up of judges and lawyers, argue that the law should "support negotiated solutions to make viable contracts blighted by the pandemic work" and to "bring contracts made unviable by the pandemic to an end in an equitable manner".
It also suggests that lawyers should encourage mediation and other alternative dispute resolution methods and that the courts should encourage online hearings so as to avoid making the present backlog of cases worse.
Concept Note 2 argues, among other things, that the best policy approach in the case of many contracts is for the law: To support negotiated solutions to make viable contracts blighted by the pandemic work;To bring contracts made unviable by the pandemic to an end in an equitable manner;Where negotiation fails, to encourage parties to undertake mediation or other alternative dispute resolution methods;Where court proceedings are needed and cannot be safely carried on in person, to encourage online hearings - these will have a much more important role in the future even when no longer necessary for health reasons, and will help to avoid a backlog of cases clogging up the system.