COVID-19: Challenges for Business law

The preventive measures adopted by governments globally to limit the effect of the pandemic, are questioning some of the well-established features of legal systems throughout the world.

The body of law which governs business is particularly affected in light of the impact of the new measures and changed public policies impacting local and global economies and will therefore need to adapt, promptly, to the new normal. Increased inequality occurring at different levels and strata of the business community appears to be the main immediate effect. The challenge for Business law, today, is to find ways to mitigate this increased inequality and to help drive societies towards a more balanced social economy.

The objective of Revista icade in preparing this monograph, COVID-19: Challenges for Business law, is to make it available to the legal community providing thoughts and proposals “de lege ferenda” on, amongst others, the following issues and questions:

• Certain civil liberties and human rights appear to have been redefined in their practical scope: freedom of movement, demonstrations and police powers to restrict or sanction; freedom of expression, defamation and fake news; data privacy, security and health protection; age discrimination and access to health... Also the divergence in the extent of special powers granted by different Constitutional systems to central and local governments in situations analogous to a state of alert.
• Justice administrations, already collapsed, are looking for ways to enhance efficiency and security in the current context and also, going forward. Due process of law is still paramount in the context of digital hearings; procedural laws need to be adapted to protect immediacy and rights of defense in this new virtual scenario. The development of ADR, mainly mediation, seems to be now critical.
• Criminal law will face a tough debate regarding manslaughter and timely decisions taken by politicians and corporates based upon the nature of information available. Criteria used to select and provide health care during the peaks of the crisis are also at question both in the public and private spheres.
• Legal theory is being redeveloped to re-elaborate the concept of cooperation at a state, political, corporates and citizen level, driving it towards being a legal duty and beyond ethics and individual rights to self-security and protection.
• Financial markets are setting new guidelines and recommendations to protect transparency and risk management.
• Insurance carriers are already under the spotlight for their interpretation of events cancellation and business interruption covers and applicable exclusions. D&O and Professional Liability insurance markets are already reacting by hardening underwriting conditions and amending insurance cover wording to exclude risks associated with pandemics.
• Corporate law is looking for new ways to adapt to comply with formalities in meetings whilst protecting the rights of shareholders, making sure that company corporate life is unaffected by restrictions to mobility.
• Corporate governance in under stress seeking the right balance in decision making-processes in the context of unexpected circumstances. Directors may face tougher scrutiny in terms of the level of information they are expected to have when exercising their rights at board meetings.
• Historical and comparative law analysis of previous legal approaches to pandemics may be helpful in designing more effective strategies, which encompass the political, sociological and psychological effects and emerging patterns in the population.
• Restructuring and insolvency, in the context of an economic crisis, which is sudden and unexpected, global and non-financial in origin, demands new and more flexible approaches toobligations in relation to mandatory filings, the liability of boards and the enforcement of security arrangements.
• Private law, as in any crisis, is seeking new understandings for concepts such “act of God”, “force majeure”, “rebus sic stantibus”, hardship... which may help to adapt existing contracts to the needs of the changed economic and social context.
• Data protection may need to re-balance considerations of privacy and the use by authorities of big-data to trace and ring-fence the risk of spread of pandemics.
• Competition law will need to address guidelines regarding financial public support to certain economic sectors, both at a local and EU level.
• Labour law reforms will need to create an environment conducive to the restoration of levels of employment compatible with demandsmade by workers’ unions.
• New health & safety regulations will need to be implemented to cope with work from home demands and security at work.

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Articles will be published on line from 1st July to 31st December 2020, once accepted after due peer review.