 So it's with very great pleasure that I welcome you to this webinar. It's a joint webinar jointly hosted by the Cambridge Centre for Corporate and Commercial Law, we call it 3CL in Cambridge, and the Cambridge Private Law Centre. I'm Louise Gallifrey, one of the co-directors of 3CL, and I'm going to chair this webinar, but we're really delighted that the seminar is going to be chaired with the Private Law Centre. That's worked very well for a couple of seminars we've done this term. Now, before I introduce our speaker, just a few housekeeping matters. First of all, on the 3CL website, if you haven't already seen it, there's a document you might like to look at at some stage called Concept Note 2. It's an update of the original Concept Note that was drafted at the commencement of the project that we're going to hear about. And also after the webinar, there'll be some notes from the webinar that will be available for you to download. Daniel's going to put that up on the 3CL website. Secondly, Bill has kindly agreed to have plenty of time for questions and discussion. If you could possibly follow this procedure, if you'd like to ask a question or make a point or have an intervention, please could you type it in the Q&A, not in the chat, or monitor the Q&A, and then when I call on you, because I'll moderate the questions, we'll make you a panelist so you can be heard and seen, and everyone can hear your question and you don't have to have it just read out by me. So you will get a chance to ask the question, but I think we've disabled the raise hand function, please, with the Q&A. Please, we've got students from Cambridge as well as academics from Cambridge and elsewhere, and if you're a student, please don't be shy, please do ask questions and join in the discussion. It's great to have you with us. So I'd now like to introduce our speaker today and to welcome him to Cambridge, virtually, of course, he's not in Cambridge, and actually now there am I, but anyway, welcome Bill, it's really nice to have you with us. So William Bill Blair has had basically three careers all going on at the same time for most of his life. He had a glittering career at the English Bar as a member of 3VB, both as a junior and a silk, and then became judge in charge of London's commercial court. After retiring as a judge, recently he's returned to chambers as a member of the International Advisory and Dispute Resolution Unit. He has various judicial roles in the Middle East and in China and is a qualified mediator. Second, he has over the years had a number of academic roles as visiting professor in the LSE and various other universities, and is now professor of financial law and ethics at the Centre for Commercial Law Studies, Queen Mary University of London. Thirdly, he has played many roles in public bodies connected with banking and finance and continues to do so. For example, he is chair of the Bank of England's Enforcement Decision Making Committee and was the first president of the Board of Appeal of the European Supervisory Authorities. He chairs the Monetary Law Committee of the International Law Association and is a member of London's Financial Markets Law Committee. Now I am very lucky because I've been lucky enough to know Bill for many, many years starting sometime back now when I was a pupil in the chambers that became 3VB. He has always been a wonderful superb technical lawyer and advocate but he is also also also always concerned himself as we do in academia with what the law should be, how the law should develop, and particularly in the light of changing circumstances in which the commercial and financial world finds itself. Now it's hard to think of circumstances that are quite so unusual as those in which we find ourselves today. Bill have commented on this, many are actually in practice, struggling with this. Bill decided to actually do something about it and he started the breathing space project based at the British Institute of International and Comparative Law to investigate the approach of different legal systems around the world to commercial contracts during the pandemic and consider what could be done further. So we're very fortunate today that Bill has agreed to come and speak to us about it and introduce the project. So I will now hand over to Bill. Thank you Bill. So Louise, thank you very much indeed and thanks to the Centre for Commercial Corporate and Commercial Law 3CL and Cambridge Private Law Centre. And thank you all who've joined. I think if you joined about three or four minutes ago, you may have heard Louise say that she hoped we'd have a really, really interesting lecturer. Not sure I can imagine a manager really, really interesting lecture, but I'll try and manage an interesting one. And it certainly as she says is a really, really interesting and frankly really, really important subject. Let me begin with some general comments to try to paint in the background and we're all by now getting quite expert in epidemiology and vaccines and so on. But let me try and shift it a little bit towards the subject of commercial contracts. So I don't really think that in late January 2020, early February 2020 when we heard about the news from Wuhan, I don't think anyone seriously thought that we would be now where we are. And as you know, where we are is that particularly in Europe and the United States, things far from improving have actually deteriorated quite rapidly. But here's the point where it comes to global trade and global contracts. The picture is in uniform for various reasons East Asia has done much better than Europe, for example. But there's been a price that's had to be paid for that and we know part of the price. Part of it is very relevant for the subject we're discussing is the quarantine that's been imposed by all these countries in East Asia around the world. And in many ways I think nothing shows the effect of the pandemic better than its effect on international travel. And let me show you a slide. I should be thanking by the way Carlos Cavallo, who is from my unit and 3VB was kindly helping with the slides. Here's a slide you may have to shift it around a little bit. I'm going to shift my picture around a little bit. But this slide shows world passenger traffic evolution from 1945 when air traffic really started to pick up after the end of the Second World War up to now. And this was updated by a body called the International Civil Aviation Organization. It's ICAO. It's based in Montreal. And this is updated as of the 12th of November. And you can see the kind of headline. Decline in world total passengers between 59% and 60% as projected to the end of 2020 where we nearly are at present. But here's the point I want to make based on this slide and picking up the point that Professor Gallifer made just a moment ago. Take a look at the other 20th century and 21st century crisis, the oil crisis, the Iran war, the Gulf crisis, then the Asian crisis. And what is being talked about here is the Asian crisis at the end of the 1990s, which was a financial crisis. Then, of course, 9-11. And if you can see, there is a noticeable dip after 9-11 in world passenger traffic evolution. Then we get to the financial crisis of 2007-2008. And you can see there very clearly a plateau. You can also see how it's recovered rapidly and grown rapidly. And then look at the end of 2020. And what's happened is that the passenger numbers have gone over the cliff. And so that's what's happened. And of course, it's an illustration. But other fields of economic activity show the same kind of patterns. And there are exceptions. The financial markets, for example, they had a kind of collapse in March 2020. It was then vast liquidity pumped in by central banks and governments. And they staged a recovery. They're recovering again now on the talk of vaccine. But really, what I think that slide does is to make a point that we've all got to face. And that is that there hasn't been a crisis of anything like the seriousness of this for global trade since 1945, not even close. That's why we should be, in the view of a lot of us, approaching these events and saying, well, you know, are we really still okay with the existing toolbox? I mean, you can say many respects served well since 1945, not in all respects. Sustainability, for example, is one respect in which it most certainly has not served as well. But is that really credible, given where we are, and even allowing for what I hope will happen, what we all hope will happen in 2021, some kind of V shaped recovery when the vaccines become available. Confidence may roll back. It's all a matter of confidence when it comes to most things in human life and certainly international trade and commerce is one of them. Yes, that may happen, but we're certainly nowhere near that just at the present time. So a few more points if I may about the background. Again, I've made the point that the picture isn't uniform and I made that point geographically a moment ago. But let me make it now in a different way and here to pick up what the WTO has said about it and this I think is a good summary. COVID-19 has devastated trade in certain types of goods, but it's encouraged trade in other types of goods. Pharmaceuticals are not this example, but they're certainly not the only ones that the state home products sword again as we know. While we're on background. Here's another very important point that I think we have to face up to. We, and I say we what I kind of meaning to generically by we are people who are in Cambridge, either actually or remotely, we tend to be looking at the direct consequences of the virus. But let me make this point, because it's a very important one when it comes to the issues that I want to develop later on this afternoon. The indirect effects of the crisis for emerging markets have been not only as serious, but probably more serious than the direct effects and here's the example that I'd like to put to you. Take a Zambia, it's got as a population of 17 million 17 million. As of a few days ago. It's reported COVID-19 cases were 17,000 17,000 with 350 deaths. Now, that is a far lower level than any country in Europe. I would, I would think certainly far, far lower than Britain. But, and there's the report, the things that have to, as a Reuters report on the, on the left, Zambia, at the time of this report was on the brink of default but actually went into default on Friday. And it's the first Africa's Africa's first country to declare COVID-19 default. And by default, we mean default in its sovereign debt, which of course is an absolutely crucial aspect of how you deal with COVID-19. We know that from Britain. The liquidity, which is being pumped into our economy has come through a ballooning sovereign debt. Now, that is not available. That kind of thing is not available for many countries in the world and not just the poorer ones which were on the right hand side of that slide. There the World Bank has pushed with some success a moratorium, but people need to agree to a moratorium. They don't just happen. And so far that hasn't really been happening. So you have leading commentators like the book height and Sean Hagan that some of you will know about who are warning about an incipient sovereign debt crisis. So individual cases aside, because of the unpredictable nature of the crisis and the longer it goes on, we have to expect a continuing impact on trade and commerce, particularly supply chains, which we hear about so often. And this has the potential to become cumulative. Now, there's a rhetorical question, which I'm posing in these remarks, and it's this, whether in order to avoid a plethora of defaults, and that by the way is Mario Draghi's phrase. He was, as you know, the first, the boss of the European Central Bank until very recently. Whether to avoid a plethora of defaults arising from the crisis. We should be looking at new ways of resolving commercial disputes, or, and this is a picking up on something that has become much, much more to the fore during this crisis. Should we be focusing on technology and seeing how that can accommodate and ultimately enhance legal proceedings. Of course, that's the subject of what we're talking about this afternoon legal proceedings. And let me just make this point. The field we're looking at is commercial contracts. But this isn't a niche concern. It's not something that's out there on the periphery, although I suspect that some policymakers might regard it as being out there on the periphery, but but why do I say that. Well, the reason is an obvious one that these international commercial contracts are in a very real sense, the lifeblood of international commerce. They provide the legal framework within which international commerce works. They become disrupted and particularly for the purposes of this discussion. If they become disrupted by disputes. So that relationships which have come under stress but but which might have been able to have been kept going had a particular attitude prevailed. In fact, get ruptured because the parties get into into disputes and you end up with a zero sum game. How is that going to impact on the recovery that we all hope is going to come. And so what I want to emphasize is that what happens to these contracts is important now. It's just true in both a positive sense and in a negative sense contract your continuity can keep trade flowing equally contract your discontinuity can impede the recovery and have the opposite effect. This is what lies behind the British Institute of International and Comparative Laws breathing space project. And as Professor Gulliver said, this is a project that I'm involved in but I, she didn't actually say this, but she's involved in it as well and is a very valued member of it I may say. Right at the top of the pyramid of the people who are looking at these issues at the British Institute, our two former presidents of the UK Supreme Court, Lord Newburger and Lord Phillips. And we call it a breathing space project, because our concern has been to see how it's possible to angle international contractual disputes in a way that gives parties space to resolve those disputes, rather than end up in in litigation or arbitration, which results in the discontinuity that is talking about a little earlier. What I'm going to do now is to talk a little bit about what kind of disputes, the pandemic is throwing up and in other words, where are we in terms of contractual disputes now that we were not, for example, in November 2019. And in terms of legal characterization, it's possible to identify three main heads, and perhaps we could have the next slide. So, first full force measure. Secondly, material adverse change and similar clauses. And thirdly, the possible discharge of contracts by legal doctrines, such as frustration, supervening, illegality, and impossibility. I made a point on this slide, a basic point, which is that the legal effect of these under any system of law is fact specific in every case and that's a point I'm going to come back to but it is very important one to keep in mind. And let me make another similar point that these terms are not always used in the same sense. It partly depends what legal system you're in. As I think we all know English law is very widely used internationally in commerce and finance. But of course, it's one of many systems, and more generally, and in relation to the those three types of dispute that I've identified the civil law and the common law take it in some respects, different approaches and that's something I'll highlight in my remarks shortly. But let me begin with force measure and force measure clauses are very common. They relieve a party of liability for performance under three conditions that the performance is caused by an event and you see on the slide the three conditions it's beyond that party's control. It couldn't reasonably have been foreseen when the contract was concluded, and it couldn't have been avoided or overcome and those really other three ground rules if you like when it comes to force measure. And that's the difference between the civil law and the common law because civil law jurisdictions, in fact, usually include force measure provisions in their civil codes. Common law jurisdictions usually do not of course in many of our common law systems we don't have a civil code as such but force measure is is not normally in in an in an enacted form. The difference is not as great as might be thought and why do I say that. Well, for the obvious reason that in when it comes to commercial contracts whether whatever law they're governed by. It's the terms that the parties have agreed that are that will prevail and are the most important thing. So that's the first head. The second head is material adverse change. And here you're talking about a contractual document doctrine again so far as the common laws concerned. So m a c clauses and similar permit a party to exit from a transaction on the occurrence of a fundamental change in the other parties ability to perform its obligations. Due to and this is what this is the normal condition due to a deterioration in its financial position. Now you see these clauses routinely in finance documents, you see them routinely in Emma day that is corporate acquisition documents. They're rarely invoked by the way, rarely invoked. But it so happens. Not surprisingly maybe that they've been revoked in in a major case recently on whether a fintech company can walk away for a walk away from a deal to buy to travel payment businesses. Because of the effects of the pandemic this is a highly contested case and is one of a number of Emma day cases that are going on in London right now and of course in Delaware, which is the the center of corporate law for the United States. And here, the courts, the courts are going to have to decide how how the material adverse change clause actually gives an out to the prospective buyer and lets the prospective buyer off the hook. I'm going to, I'm going to come back to that. Just before before leaving it though, and I mentioned earlier the difference between civil law and common law and you get that again here in not quite not quite yet Carlos will go stick on that one. Thank you. In civil law codes, often contain comparable provisions such as and provision on the French civil code. But there's a very interesting difference between the common law and the civil law in approach that I just want to highlight for you. And that is that a feature of some of the provisions in civil codes are to enable a court to adapt the contractual terms in China, which of course generates now an appreciable volume of global trade. The Supreme People's Court has issued guidance as to how the these provisions in Chinese law are to be applied in the light of the pandemic. And they have similar provisions to the provisions in the German code in China. And I have this information from Chinese judge. The judiciary has been quite slow to apply them. Why is that because when it comes to international commercial contracts, my, my guess is that most judges would be rather cautious before adapting the terms of a party's contract. But anyway, so far as the common law concerns certainly the English common law that is not even available to judges in theory. Next slide please the doctrine such as frustration, supervening illegality impossibility. These doctrines applying both the civil law and the common law under various different names. And here, an interesting decision in the civil law from Spain, where a court has dealt with a case where a steel group is resisting payment of bank loans. And you can see on the slide what the court has said and it gives perhaps some indication of how certainly the courts in that in that country looked at looked at the issue. Well known that the covered 19 pandemic caused a drastic drop in production and demand. And I think the court went on to say to the social reality as it is now. And that perhaps is something that all of us can relate to. We may have missed off a little bit of the bottom there but finally was necessary to adapt contract law institutions and I think the court went on to say to the social reality as it is now. And that perhaps is something that all of us can relate to even if, as I said on the right here. It's unlikely, I think that a common law court would take quite such a robust approach. Frustration is something which is difficult to prove in English law. Just a word about supervening illegality and when might supervening illegality bite. And I think it's perhaps important to give this a little bit of thought, because depending on when the pandemic ends. I see more government intervention and take an example. Suppose you have a factory that is producing components for motor vehicles and on government direction, it stops doing that and starts producing medical supplies. There, the supplier may have a defense based on supervening illegality without having to necessarily look at more difficult doctrines such as frustration. But here's the point I want to stress in relation to all these doctrines and really it's the legal backdrop to the breathing space project. In relation to all these doctrines, the legal analysis will depend on the individual contract and the facts of the individual case. And this is a very important point to bear in mind when you're considering the law and COVID-19 in this commercial context. It may seem very obvious to a business person that their contract has been reduced by COVID-19. But so far as the law is concerned, the path to establishing legal liability may be and very often will be far from predictable and will certainly include issues of causation. So that's the legal background then. And let me now focus on the thinking of the breathing space project as to how in these circumstances we're best to move forward. Now, we do not, of course, suggest that legal proceedings should generally be avoided. That's a matter of judgment for parties and their legal advisors. Legal proceedings are often going to be inevitable. But we do make this point that in a crisis like the present, it's important to recognize that there is a public interest in play, as well as a private interest. And this point applies despite the fact that we're in the realm of private law now, despite the fact that we're in the realm of contracts. And despite the fact that modern contract law is reflective largely of laissez-faire principles going back a long time, but there is a public interest that this pandemic has generated. It's also the case that in some respects litigation can be actually constructive rather than destructive. Now, I think many of us will be aware of the test case which has been brought by the Financial Conduct Authority, which is one of the UK financial regulators against various insurance companies. And the subject of that case, of course, is business interruption insurance. And it's a very live issue in this pandemic because on the one hand, you have many businesses and many small businesses which have got business interruption cover. And that cover, if available, would make a very great difference to how they cope with the pandemic. But on the other side, you've got vast potential liabilities for insurance companies. So unsurprisingly, this is going to be a difficult area to resolve. And that's why the FCA has brought this test case. And again, some of us will have seen the lengthy judgment that was handed down in September. The court analyzed 21 different types of insurance policy issued by various different insurers. It is certainly the case now it's certainly clear that coverage can be available for COVID-19 business interruption cases. However, and this is the real qualification liability in individual cases depends on applying the principles to the individual facts. And that's why, as I made the point I made a number of times, all these cases do come back to that in the end. By the way, as some of you will have seen, the was an appeal to the Supreme Court. On this case, the appeal started yesterday. It goes on until Thursday. It is actually happening today, but it's not actually happening right now, because it's the lunch and break, but for anyone wants to catch up with it afterwards. It's being being being live streamed. But I don't know whether whether the plan was that this seminar was fixed for one o'clock to avoid conflict with court times. But anyway, it has very neatly done that today. So now back to the breathing space project. We published our first concept note back in April, back in April, and it honestly, I'm sure you all agree, seems like a long time ago. One of the things we warned of was the risk of a deluge of litigation and arbitration and the way we put it and I'm reading now. The risk of a deluge of litigation arbitration placing a strain on the system of international dispute resolution and reducing the prospect of more constructive solutions and increasing the prospect of uncertainty of outcome. Those two points are both important, I think, and I've tried to make them already, but let me just focus on on them a moment. Firstly, there's the possibility of something more constructive than a deluge of litigation. And secondly, and this is a point that I've also emphasized, there's the question of uncertainty of outcome. I'm not going to repeat what I've said about about that. Now we're in November. And so far as I'm aware, there are no empirical studies on COVID-19 commercial disputes. It's anecdotally, it seems that in the immediate aftermath of the spread of the virus business was really in very much in survival mode often. It certainly wasn't concerned with pursuing disputes, but that now seems to be changing. And as I said, anecdotally, the do appear to have been a great number of disputes going to courts, courts like the commercial court in London and their equivalents elsewhere in the world. And of course international arbitration, which is very important for international commerce generally, as I think you will very well aware. Just an aside, if I may, the fact that there are a great number of disputes has meant that the legal community of which we are after all all members has been affected disproportionately by COVID-19. There are some, those legal firms or groups of barristers who specialize in subjects like commercial law are extremely busy. Those groups that are dealing in say criminal cases are not. And one of the points I'm going to come to in just a moment when I talk a little bit about technology is there is a lot of difference between the technological position when it comes to commercial dispute and the technological position when it comes to a criminal trial and at least one of the reasons and probably the most important reason is the absence of a jury in civil disputes in the, at least in the English branch of the common law of course they're there and the American branch. If there's a jury, it is considerably more difficult to put on a remote hearing, but we're not in that field. So let me give you a few examples we've had some already of the breadth of the disputes and then I'll come to technology. A very early example and actually an important one comes from the nuclear nuclear industry. And that's a decision that comes from France the decision of the Tribunal de Commerce de Paris, the French commercial court and handed down in May 2020. And that found contractual force measure established in the case of the effect of the virus and producing a base brutal steep decline in the consumption and marketplace of nuclear electricity and that is the interim decision of the Paris court was upheld by the Paris Court of Appeal in July. So that's a particular example where demand, a sharp reduction in the demand of a particular product brings you into this, this area that we're talking about. Now, from New York, an example of litigation about co branded airline credit cards, you know the type of car that's issued by a bank and it's co branded with an airline. And this particular case. Carlos, this is very much for you, I think the bank was a Brazilian bank. And the airline was American Airlines. And here you know, think back to that slide we saw and it's extraordinary really that I find myself saying this, but on the 29th of March American Airlines suspended all flights to Brazil. Anyway, the issue in the case revolves around the mileage points, which the bank is obliged to purchase under the terms of the agreement. And it says that these points are now valueless because no one can use them. And the kind of issues that are being argued out in front of the New York courts that hasn't been a dispositive decision of the court yet but it turns on issues like contractual force measure and frustration, both of which we've seen. I don't think I'm going to go through the other cases I've mentioned I think we've looked at those already, a travel port and travel port and wax case the business in corruption case and the steel group case in Spain. But these are all about types of disputes. We believe, we believe that our concern as to the risk of a plethora of disputes is fully justified. That's our belief. And of course, we're not in any way through yet. This crisis has got a long way to go yet. Certainly so far as international trade and commerce is concerned. And that will not come back immediately on the availability of one or more vaccines, although the return of confidence which those vaccines might bring is of course crucial to the ending of this crisis. But the question is, what to what to do about it suppose we're right that this is a risk. How should we be approaching this. Should we be looking at new ways of resolving disputes or should we be placing our trust in technology. Now, perhaps unsurprisingly, I'm going to be saying that this is not an either or choice and that we should be doing both. Let me say something about the impact of technology following the outbreak of the pandemic because this is something I've got a fair amount of personal experience on which I'd like to share with you. And I can summarize it relatively briefly. So, when it comes to litigation, most of us envision that that's a process taking place in a courthouse which indeed it normally does. As from March 2020. In many countries, courthouses were closed. Either completely or partially, they are gradually reopening now by the way, somebody be interested to know they've completely reopened in China they did some time ago. But for those of us who are still coping with the virus. It's been a gradual process and of course, it hasn't been a linear process to see what I mean. It hasn't been in all a gradual reopening unfortunately it's been kind of a reopening and then closing and we'll be back to reopening again soon. And, and a very important point from the perspective of dispute resolution is one which I know you'll immediately connect to and that is the problem of backlog. So arbitration. Again, most of us envision arbitration taking place physically which it normally does but there is this difference that routine hearings in international arbitration. Such as direction hearings for a very long time have been conducted by phone. But substantive hearings have taken place physically. Now, the pandemic has given a massive boost to the holding of hearings remotely on various different platforms. And so far as I can tell from my dealings with other judges and arbitrators and other jurisdictions. This is very much a, as you'd expect a global phenomenon at least in the major industrial and financial centers. So how did it work well. I'm talking now about commercial cases. The judge would would participate from outside the courts. Now as the course gradually reopen, perhaps from inside the courts. But his lawyers would, of course, participate from outside the courts, although sometimes from now from inside, sometimes from their law offices, sometimes not protocols dealing with all kinds kinds of things such as for example, document production, that kind of thing and how you put documents before a court in a room or an arbitral tribunal in a remote hearing they were rapidly introduced and approved. And the same applies to arbitration. Now I have my eye on the clock and Freda Louise I'm running a little late so I'm going to stop now but Carlos. Could you come to the last slide please, because this summarizes what I want to end with and what I really want to leave with you. I said, what should we do about it. Technology. Yes, really important. But we need to change our approach to dispute resolution. And the third part of the breathing space space project at the issue of guidelines, which came out a few weeks ago. Now you'll see on the other slide. There's a link there to where where you can find them. I'm not going to read it out, but but those are the behaviors which which we want to see adopted to shift from zero some game to an approach to dispute resolution that looks for solutions. Thank you.