Up Again: Suppliers and contractors

Navigating the supply chain in a distressed market: a. My company supplies goods and I am concerned about the solvency of my customers. Are there any steps I can take to mitigate risk/my exposure?

Depending on the nature of the goods, we recommend that you consider retention of title of the goods or consider establishing a floating charge as security for any future payments.

Further, we generally recommend limiting any credit to customers during the period of returning to business.

Depending on the contractual conditions between the supplier and the customer, the supplier may change the period of credit or require down payment in whole or in part of the purchase price upon delivery.

Depending on the contractual conditions between the supplier and the customer, the supplier may require a standing bank guarantee or similar covering any amount the customer owes to the supplier.

Depending on the relation between the supplier and the customer, the supplier should keep an ongoing dialogue with the customer to keep the supplier updated on the customer’s financial situation. Accordingly, the supplier has a better opportunity to assess the solvency and mitigate the risk of delivering goods on credit.

Navigating the supply chain in a distressed market: b. My company relies upon the supply of goods/services and I am concerned about the solvency of my supplier? Are there any steps I can take to mitigate risk?

We recommend that you keep a close dialogue with all suppliers essential to your business.

Avoid making any upfront payments to secure necessary deliveries.

Depending on the contractual conditions between the supplier and the customer, the customer may seek to expand the period of credit. In any case, the customer should not make any prepayments before the goods have been delivered.

If prepayment is made by the customer, the customer must secure the individualization of the goods as soon as possible to secure the title to the goods in case the supplier is declared bankrupt before the goods are delivered.

How will legal disputes that have arisen as a result of COVID-19 or its effects (for instance, in relation to force majeure) be affected by restrictions being lifted and resuming business operations in whole or in part?

In general, the legal disputes will be determined based on the facts at the time of the commencement of the dispute. As such, if the dispute is for example due to a matter of force majeure, it will still need to be decided by the courts so generally legal disputes will not be affected by restrictions being lifted.

How should you manage those disputes once COVID-19 restrictions are lifted?

We always recommend that you try to seek an amicable solution to a dispute with your suppliers or customers to secure and maintain future business relations.

Irrespective of restrictions being lifted, the disputes will continue with the courts until they have been settled or until the court has made its decision.

What should you do when restrictions are lifted if you have suffered loss under a contract as a result of COVID-19 or the restrictions, but have not yet taken legal action in relation to that loss?

In any circumstance, you should give notice to your contracting party if you have suffered a loss under the contract.

Depending on the position of your contracting party, you should contact your legal advisor to seek guidance to initiate legal proceedings.

Is there any risk of mass claims being brought against your business? If so, how would such claims be brought? Are third party funders able to fund such claims?

Danish law does provide for mass claims being raised. However, our view is that the risk of facing mass claims due to COVID-19 or the restrictions is very limited.

What should I do about recording contractually or otherwise any of the changes put in place during the COVID-19 lockdown period?

We recommend that you record the changes made to contracts due to COVID-19 and incorporate the changes in future contract management to be prepared if a situation like the COVID-19 occurs.

Any return to normal will likely not be as immediate as the impact of COVID-19 when it started (e.g, sales/orders will take time to ramp up, raw materials will take time to flow through supply chains, etc.) what should I think about and do to best manage this in my contracts?

During the process of returning to normal, we recommend you consider managing your contracts in accordance with previous principles and refrain from deviations from previous processes in order not to expose the business to unnecessary risks.

What additional protections or changes to existing provisions (e.g. force majeure) should I put into any new supply arrangements having regard to COVID-19?

We recommend considering the wording in the force majeure clause to include specific and relevant wording related to pandemic situations like the COVID-19.

If you supply products, we recommend you include the COVID-19 situation in the definitions of force majeure in relevant contracts. If you are a customer on the other hand, we recommend you exclude such wording to secure delivery and remedies in the event of non-delivery.