Business Law (including Franchises)

This section includes literature on small and medium-sized enterprises (SMEs).

Abdul Ghani, Nur Amalina et al, ‘The Legal Impact of Covid-19 on Small and Medium-Sized Enterprises (Smes) in Malaysia’ (2022) 7(28) International Journal of Law, Government and Communication 75–96
Abstract: The COVID-19 pandemic has impulsively posed new challenges to many businesses and companies around the globe due to travel and business restrictions. COVID-19 which has been declared a pandemic by the World Health Organization (WHO) on the 11th of March 2020, which originated from Wuhan City, the People’s Republic of China has consequently crashed the downtime of the economy in Malaysia and caused a significant impact on the Small-to-Medium Enterprises (SMEs) business operation. The present study employs a mixed methodology, which includes an analysis of primary and secondary legal sources, and a questionnaires survey. The aim of this research is to identify the legal impacts on SMEs due to the COVID-19 pandemic influences on a business operation which will further assist policymakers to develop actionable policies and support the growth of SMEs in Malaysia. The government should be transparent in disseminating the post-COVID-19 data because it can be a thrust for the SMEs in planning their future agenda to ‘bounce back’ the economic sectors effectively.

Aidi, Zil, Mohamad Yudha Prawira and Mireza Fitriadi, ‘Indonesia Legal Policy for Micro, Small, and Medium Enterprises Post COVID-19 Pandemic Economic Recovery’ (2023) 21 Review of Economics and Finance 2611–2617
Abstract: The existence of Micro, Small, and Medium Enterprises (MSMEs) is an essential factor in the economic growth of a country. The COVID-19 pandemic has significantly impacted the sustainability of MSMEs in Indonesia. Based on these conditions, the MSMEs need a suitable legal policy to support them, especially in post-COVID-19 economic recovery. This normative juridical research with conceptual, comparative, and statutory approach aims to analyze the Government of Indonesia’s (GoI) legal policy on the MSMEs post-COVID-19 pandemic economic recovery. This research also discusses the GoI legal policy impact on the MSMEs. The result shows the GoI has issued several legal policies in the form of regulations, such as Law Number 6 of 2023 concerning Approval of Government Regulation in Lieu of Law Number 2 of 2022 concerning Job Creation, The Government Regulation Number 7 of 2021 concerning Simplicity, Protection, and Empowerment of Cooperatives and Micro, Small, and Medium Enterprises and The Regulation of the Minister of Cooperatives and Small and Medium Enterprises Number 2 of 2019 concerning Electronically Integrated Business Licensing for Micro and Small Businesses. These regulations provide convenience to MSMEs in obtaining permits with Business Identification Numbers, while other licenses are adjusted to the risk level of the business activity. In addition, MSMEs may access various incentives and subsidies. Those regulations were addressed explicitly by the GoI to strengthen the position of MSMEs, which will directly impact the strengthening and growth of the national economy after the COVID-19 pandemic.

Baker, Todd H and Kathryn Judge, ‘How to Help Small Businesses Survive COVID-19’ (Columbia Law and Economics Working Paper No 620, 2020)
Abstract: Small businesses are among the hardest hit by the COVID-19 crisis. Many are shuttered, and far more face cash flow constraints, raising questions about just how many will survive this recession. The government has responded with a critical forgivable loan program, but for many of these businesses, this program alone will not provide the cash they need to retain workers, pay rent, and help their business come back to life when Americans are no longer sheltering in place. This essay calls on regulators to find new and creative ways to work with existing intermediaries, including banks and online lenders, who have the infrastructure and tools needed to help small businesses get the additional loans they need to survive and thrive. Leveraging existing institutions could enhance the speed, scale, and scope of the government’s response, all critical virtues in the efforts to support small business.

Baker, Todd H, Kathryn Judge and Aaron Klein, ‘Credit, Crises, and Infrastructure: The Differing Fates of Large and Small Businesses’ (2022) 102(4) Boston University Law Review 1353–1396
Abstract: This Essay sheds new light on the importance of credit creation infrastructure in determining who actually receives government support during periods of distress, and who continues to benefit after the acute phase of a crisis and the government’s formal support programs come to an end. The pandemic revealed, and the government’s response accentuated, meaningful asymmetries in the capacities of small and large businesses to access needed funding. At first glance, it would seem that small businesses benefitted more than large ones from the government’s pandemic-support programs, as more government funds flowed into small businesses. Yet closer inspection of the range of government programs implemented and their longer-term impact reveals a very different picture. By primarily providing grants to small businesses, the government helped address their short-term cash flow challenges but did little to encourage ongoing private credit creation for these businesses. The aid provided was real but finite in nature. By contrast, the nature of the programs used to facilitate financing for the largest businesses provided major support at the moment and created expectations of future support. These interventions enhanced the viability and attractiveness of inherently fragile intermediation structures and set them up to continue to provide cheap and easy financing for the largest businesses long after the acute phase of crisis had passed. This Essay further reveals how numerous seemingly neutral choices were anything but in practice, creating a disconnect between policymakers’ stated aims and the actual impact of many of their actions. A key takeaway is that the government should do more during times of peace to understand and shape the credit creation infrastructure in ways that facilitate small business lending in good times and bad.

Berman, Douglas A et al, ‘Struggling Through the Pandemic: Cannabis Social Equity During COVID-19’ (SSRN Scholarly Paper No ID 3628533, 16 June 2020)
Abstract: In March 2020, in response to the COVID-19 national emergency, states across the United States began issuing shelter-in-place orders curtailing operations of individual businesses based on ‘essential’ and ‘non-essential’ classification. Virtually all states with legalized medical cannabis, and the majority of adult-use states, allowed cannabis establishments to remain open albeit often with significant restrictions on their operations. Yet, the cannabis industry, and small, minority-owned or social equity designated businesses in particular, are not insulated from the broader economic shockwaves spreading through the country. In April 2020, the Drug Enforcement and Policy Center conducted a survey asking patients/consumers and cannabis industry professionals about the challenges they were experiencing and government responses. Hoping to fill a gap in early discussions of the impact of the COVID-19 crisis, we were especially interested in the impact on cannabis industry participants designated as social equity businesses. The results indicate that the COVID-19 pandemic has both introduced tremendous new challenges for the cannabis industry and exacerbated long-standing difficulties for businesses in this arena. If small, minority-owned and social equity businesses are to survive, they need to be treated by the system like any other regular small business venture. While regulations and safeguards are necessary, these businesses need to be able to operate as a true business, rather than a semi-legal venture with no access to loans, banking, insurance, tax relief, and flexible deliverable modes.

Berse, Kristoffer B, Kirsten Lianne Mae C Dedase and Lianne Angelico C Depante, ‘Autonomous Adaptation and Governmental Responses to the COVID-19 Pandemic: Exploring the Resilience of Micro, Small and Medium Enterprises in the Philippines’ in Yuka Kaneko (ed), Changing Law and Contractual Relations under COVID-19: Reallocation of Social Risks in Asian SME Sectors (Springer, 2023) 55–78
Abstract: This study frames the COVID-19 pandemic’s impact on Philippine micro, small, and medium-sized enterprises (MSMEs) from the lens of resilience, while discussing the various types of support that MSMEs have received from government agencies and public and private banks. Using data from a small-sized survey involving managers and workers, it explores the issues, needs, and responses that MSMEs have encountered. Preliminary findings reveal limited stimuli to ensure MSMEs’ survival. To cope with the disruption, most reported adopting adaptive mechanisms. The paper ends with a discussion of policy recommendations and future research directions to further explore and strengthen MSME resilience.

Boon, Gert-Jan et al, ‘The COVID-19 Pandemic and Business Law: A Series of Posts from the Oxford Business Law Blog’ (Oxford Legal Studies Research Paper No 15/2020, 2020)
Abstract: The COVID-19 Pandemic is the biggest challenge for the world since World War Two, warned UN Secretary General, António Guterres, on 1 April 2020. Millions of lives may be lost. The threat to our livelihoods is extreme as well. Job losses worldwide may exceed 25 million.Legal systems are under extreme stress too. Contracts are disrupted, judicial services suspended, and insolvency procedures tested. Quarantine regulations threaten constitutional liberties. However, laws can also be a powerful tool to contain the effects of the pandemic on our lives and reduce its economic fallout. To achieve this goal, rules designed for normal times might need to be adapted to ‘crisis-mode’, at least temporarily. Business Laws in particular fulfil an important function in this context. Our livelihoods depend on how well businesses are able to navigate through the current crisis.Beginning in early February 2020, the Oxford Business Law Blog has published posts on how Business Laws could contribute to containing the effects of the COVID-19 Pandemic, and on how they need (or need not) to be adapted to achieve the desired effect. This working paper collects the posts published throughout March in chronological order. Thematically, the focus is on finance, financial regulation and insolvency laws. This is not surprising as the most pressing problem businesses face right now is to manage their cash flow. We hope that the contributions in this paper inspire more work by scholars and help policymakers worldwide to adopt the right measures to reduce the damage caused by the Pandemic.

Botar, Claudia-Florina, ‘The Pandemic Wave’s Legal Effects on Entrepreneurship in Romania. A Compilation from Midway Through the Global Health Crisis (I)’ (2024) 5(4) CECCAR Business Review 1–14
Abstract: The rapidly developing coronavirus pandemic’s footprint requires a deeper investigation in terms of the consequences on the business environment. The literature on this subject is vast, as confirmed by the present work, the unprecedented health situation creating the conditions for studies, analyses and syntheses related to the specific framework created by the crisis with resounding effects on the economic world. Highlighting how the pandemic situation has affected the legal position of enterprises, in terms of insolvency, dissolution, deregistration, etc., is the primary goal of the research on the repercussions of the pandemic wave on the entrepreneurial environment. In addition, we want to quickly discuss the level of interest that academics have in the topic, which is a crucial component in understanding the mechanisms underlying the events and their substance. The methods of analysis of the main topic define the methodology of scientific research, being represented by specific research techniques such as literature review, analysis, synthesis and specific means of bibliometrics. Overall, the coronavirus pandemic is significantly affecting businesses’ legal circumstances, and researchers from all over the world are becoming interested in this issue.

Bradley, Christopher G and Hannah Oates, ‘The Multi-Level Marketing Pandemic’ [2021] Tennessee Law Review (forthcoming)
Abstract: Among the many societal effects of the COVID-19 pandemic has been a sharp rise in the activities of multi-level marketing companies (MLMs). MLMs are business enterprises in which participants seek not only to sell products to friends, family, and social media contacts, but also to recruit them as MLM participants, with the promise of ‘building their own business from home.’ False promises often pervade MLM sales pitches. Evidence shows that few participants see even a dollar of profit from their MLM work; the vast majority of recruits quickly abandon their MLM dreams and lose their investments. Yet the pitch has become all the more appealing in the course of the COVID-19 pandemic. Many people are desperate—unemployed and in need of immediate earnings and also in need of flexible, at-home work due to health concerns and family responsibilities. MLMs have been particularly appealing to the working mothers who, evidence shows, have borne the brunt of the impact of COVID-19 both on employment and on childcare and other household-related responsibilities. Regulators have long scrutinized and fought the worst abuses of MLMs. They have sought to find and shut down the unscrupulous MLMs that are in fact nothing more than fraudulent pyramid schemes, and also to curtail the misrepresentations and exaggerations that are all too often the stock-in-trade of participants in more legitimate MLMs. But regulators, including the Federal Trade Commission, face significant legal and practical limitations in their ability to promulgate and enforce MLM regulations. This Article examines how regulators have addressed MLM activity and proposes means of stemming the pandemic-driven expansion of unlawful MLM activities. It assesses efforts by regulators, by social media companies, and by self-regulatory organizations set up by MLMs themselves. Comprehensive, long-term success at curbing the abuses of MLMs will require more significant regulatory action that is currently permitted by law. But immediate steps outlined here can provide some much-needed relief for consumers harmed by the unlawful MLM activities that have been fostered by the COVID-19 pandemic.

Buchan, Jenny and Rob Nicholls, ‘The Challenges of Navigating the COVID-19 Pandemic for Australia’s Franchise Sector’ (2020) 48(2) Australian Business Law Review 126–137
Abstract: A pandemic forces franchisors, franchisees and other stakeholders to look with fresh eyes at contracts that usually remain in the bottom drawer. Government light-touch legislation is challenged, and the franchise sector must deal with forcefully drawn contracts and competition from more agile non-franchised businesses. All concerned must come to grips with how contract law addresses a pandemic, if at all, and how courts might interpret established contractual and statutory obligations and legislation enacted to respond to COVID-19. This article reviews franchising through the lenses of force majeure and frustration, and considers how the courts might interpret responses to COVID-19 in the light of the good faith obligation under the Franchising Code of Conduct. It also canvases federal and State regulatory responses in the context of franchising. The article concludes that franchisors will need to depart from a one-size-fits-all response to a more bespoke approach on this occasion.

Carr, Nanci K, ‘Business Continuity in Light of the Coronavirus Disruption: Group Exercise’ (2020) 3(1) Journal of Business Law and Ethics Pedagogy unpaginated
Abstract: The coronavirus and variants continue to sweep the world, adversely affecting individuals, schools and businesses. As the pandemic began, global communities were plagued by a lack of supplies, canceled travel and events, and an almost instantaneous economic decline. While we may typically teach disruption in the context of new technologies, the disruption caused by the coronavirus is an excellent opportunity to teach business continuity. In a business law context, we can highlight that clients all over the world are contacting their attorneys for advice on how to keep their businesses running until the crisis is resolved, and engage in an exercise based upon an actual client request.

Covic, Dragan, Ana Covic and Milos Petrovic, ‘Legal and Business Aspect of Franchise and Franchise Business and Measures During the Covid-19 Pandemic’ (75th International Scientific Conference on Economic and Social Development, 2-3 December 2021) 229–239
Abstract: Franchise is a business privilege defined by franchise law through which the franchisee operates, performs the franchise activity of selling certain products or performing defined services by the franchisor. The franchisee uses the trademark, the service mark of the franchisor, all based on his work and methods in the defined activity, use of franchise privilege. Based on the franchise agreement, the franchisee pays the franchisor a franchise fee. A franchise agreement is based on the principles of contract law, concluded with the consent of the will of the contracting parties and belongs to unnamed contracts and by its nature is a mixed contract, since it also contains elements of some other contracts. National and international regulations affect the protection of intellectual property rights and determine the content and manner of performing franchise activities. Franchising as a segment of entrepreneurship is a complex legal and economic business model, created between two independent economic entities. Franchise business can be viewed from several business aspects, such as: the manner and method of growth of economic entities that are geographically conquering new markets; enable growth of production and distribution capabilities of franchisors and recipients; form of new entrepreneurial activity of economic entities towards winning and starting a business activity with the creation of new jobs; the emergence of a new organizational form and a new form of restructuring in organizational terms with the beginning of new distribution channels and finding new sources of funding. At the same time, franchise business from the aspect of the theoretical concept gained its practical verification of business success through the operationalization of franchising as a way and method, "Know-how“, a concept that ensures the development and sustainable growth of the business entity in accepting franchising as a new opportunity in the economic development of the business entity. Also, today in these times of lockdown and closed stores and restaurants, franchisors and franchisees were and still are affected by the COVID-19 pandemic and requested to adapt their sales model, planning and implementation to the circumstances, because a whole franchise system has been challenged.

Cresanti, Robert, ‘The Impact of COVID-19.’ (2020) 52(4) Franchising World 8–8
Abstract: An editorial is presented which discusses the Impact of COVID-19. It discusses about how the new federal coronavirus laws will impact the business from Littler Mendelson’s Michael Lotito and James Paretti; IFA board member Jerry Crawford from Jani-King shares important information about how to safeguard your business, employees and customers; and the rest of this issue is still dedicated to providing important information about franchising to our members that we know you’ll find value from.

Crisp, Anne, Joan Heminway and Gary Martin, ‘Business Law and Lawyering in the Wake of COVID-19’ (2021) 22(2) Transactions: The Tennessee Journal of Business Law 365-391
Extract from Introduction : The public arrival of COVID-19 (the novel coronavirus 2019) in the United States in early 2020 brought with it many social, political, and economic dislocations and pressures. These changes and stresses included and fostered adjustments in business law and the work of business lawyers. This Article draws attention to these COVID-19 transformations as a socio-legal reflection on business lawyering, the provision of legal services in business settings, and professional responsibility in business law practice. While business law practitioners, like other lawyers, may have been ill-prepared for pandemic lawyering, we have seen them rise to the occasion to provide valuable services, gain and refresh knowledge and skills, and evolve their business operations.

Deere, Kelly and Christine Gottesman, ‘We Can Do This: Reopening the Non-Public Office Sector and Keeping It Open During the COVID-19 Pandemic’ (SSRN Scholarly Paper No ID 3709466, 1 September 2020)
Abstract: In March 2020, COVID-19 forced many non-essential businesses with non-public office settings to physically close their doors and conduct their businesses remotely. For many non-essential businesses, physical office space shut down and many employees began working from home or telecommuting. As states reopened their economies, the CDC, OSHA and a number of state agencies provided guidance for employers to reopen and/or maintain a safe workplace in these office setting businesses. While these guidelines are not uniform in size, scope or content, we conclude that there is sufficient guidance for these employers to safely open their businesses and stay open. We recommend that CDC and OSHA issue joint guidance to create a uniform and not piecemeal approach for office workplace safety and that the guidance be updated regularly. Since the non-public office settings are at a low-risk of COVID-19 exposure, we recommend that both federal and state governments provide guidance and not more formal standards or regulations. There is no one-size fits all approach to the non-public office setting therefore these employers should have the flexibility to implement the recommendations that work best for them.

Duong, Anh Son and Kim Hanh Dung Vu, ‘Balancing Medical Needs and Economy Policy in the Covid-19 Pandemic: A Review of the Vietnamese Government Response’ in Yuka Kaneko (ed), Changing Law and Contractual Relations under COVID-19: Reallocation of Social Risks in Asian SME Sectors (Springer, 2023) 79–107
Abstract: The COVID-19 pandemic in Vietnam, notably the fourth wave, which began in April 2021 with the appearance of a new strain of the virus, has had serious consequences for people’s health and livelihoods, as well as presenting unprecedented economic challenges. Faced with this situation,the National Assembly and the government have hastily enacted a series of rules aimed at preventing the spread and breakout of the COVID-19 pandemic while also maintaining social security programs and limiting health and economic damage. The purpose of this research is to examine policies to assist businesses and employees based on an analysis of current rules (updated until September 2021) and a survey of nine businesses, so giving some discussions and suggesting policy recommendations to overcome the pandemic.

Germann, Stewart, ‘Force Majeure Provisions in Franchise Agreements in New Zealand’ (2021) 40(4) Franchise Law Journal 681–691
Abstract: Events of Force Majeure A force majeure clause must first define the ‘events of force majeure.’ I. Force Majeure Clauses in General A contract might specifically provide for and manage the legal effect of external events by the inclusion of a force majeure clause. Many franchise agreements contain a force majeure clause; that is, a clause governing events happening beyond one’s control like an act of God or a pandemic. Chitty on Contracts states that a ‘force majeure clause’ is normally used to describe a contractual term by which one (or both) of the parties is entitled to cancel the contract or is excused from performance of the contract, in whole or in part, or is entitled to suspend performance or to claim an extension of time for performance, upon a happening of a specified event or events beyond the party’s control. Such clauses may assume a variety of forms, but, in New Zealand, the term the usual force majeure clauses to apply has been held void for uncertainty. Force majeure clauses have been said not to be exemption clauses, although it is difficult to draw any clear line of demarcation between the two types of clauses, since the effect of each may relieve a contracting party of an obligation or liability to which the party would otherwise be subject.

Ilyas, Muhammad and Rizki Ramadani, ‘The Effectiveness of Legal Policies on Micro and Small Business Empowerment in Pandemic Time’ (2022) 28(2) SASI 244–258
Abstract: MSMEs made a significant contribution to the Indonesian economy at the beginning of 2018. However, since COVID-19 has become a global pandemic, micro, small, and medium-sized enterprises (MSMEs) have been heavily impacted, due to a series of social restriction policies enacted by the government. In order to resolve issues, the government must assist and empower the MSME sector so that it can survive the pandemic. However, not many studies have been carried out regarding the extent to which empowerment policies by local governments have been effective in the field. Purposes of the Research: This study aims to determine the effectiveness of the legal policies in empowering the micro and small enterprises (MSEs) during the pandemic based on the case of Gowa Regency, South Sulawesi.

Kaneko, Yuka, ‘Asian Perspective on the State and Market Responses to the COVID-19 Pandemic’ in Yuka Kaneko (ed), Changing Law and Contractual Relations under COVID-19: Reallocation of Social Risks in Asian SME Sectors (Springer, 2023) 123–147
Abstract: This chapter summarizes major findings from the joint survey on the ‘justice’ sought in the pandemic within the contexts of legal, institutional and cultural differences between Asian economies, under the auspices of the Kobe University Center for Social System Innovation, involving contributors from China, Indonesia, Korea, Myanmar, New Zealand, the Philippines, Thailand and Vietnam as well as Japan. Opposing to the economists’ arguments on the ‘trade-off’ between infection control and the economic impact of COVID-19, the survey found that countries which applied a ‘request-based’ pandemic control in an attempt to mitigate the ‘trade-off’ have seen a prolonged negative impact in the socio-economy where the SME sector is compelled to assume risks. Normal time contractual relations are expected to be modified to avoid the worst type of transfer of burden onto the most vulnerable groups, but the joint survey has found a tendency of ‘dry’ contractual culture in most of the target countries where the historical doctrines of capitalist law for the emergency modification are forgotten, except for rare exceptions such as the regional SME financing in Japan.

Kaneko, Yuka, ‘Law and Social Changes in a Pandemic: Results of Survey of COVID-19-Affected SMEs in Kobe, Japan’ in Yuka Kaneko (ed), Changing Law and Contractual Relations under COVID-19: Reallocation of Social Risks in Asian SME Sectors (Springer, 2023) 1–26
Abstract: This chapter investigates into the law and social changes in Japan under the impact of COVID-19, in a search for ‘justice’ in the social allocation of the burden caused by the pandemic, with a particular focus on the contractual relations surrounding small- and medium-sized enterprises (SMEs). A number of distortions are detected in the contractual relation resulted from regulatory intervention or trade customs which impede contract renegotiation which could otherwise be expected for mutual risk-sharing in the emergency. Another controversy is that the results of the failure of ‘small government’ that delayed infection control have been transferred to the regional financial sector for SMEs, but the government is taking this as an opportunity for a financial sector restructuring.

Kristianto, Fennieka and Fidela Gracia, ‘Liability of the Parties in Franchising Due to Pandemic Covid-19’ (2021) 1(2) Corporate and Trade Law Review 119–140
Abstract: The occurrence of Covid-19 in recent years provokes a great deal of issues all around the world including Indonesia. It influenced every aspect of life and the most prominent one falls within the economic field. Businesses were dealing with a lot of difficulties and one of them is encountered within the franchising business between the relationship of Indonesian franchisee and foreign franchisor in which a dispute arose within their franchise agreement. This is due to the fact that plenty of restrictions were imposed that cause the Franchisor incapable of importing raw materials for the Franchisee in Indonesia, hence, the Franchisee is unable to start their business here in Indonesia. The Indonesian franchisee has likewise paid a certain amount of the initial fee, thus, the Indonesian franchisee requested a full refund for the delay of the service. Normative legal research is applied in determining the liability of each party and the best possible solution in overcoming the issues within this franchising business. Furthermore, this issue shall be contemplated as hardship instead of force majeure and renegotiation shall be conducted by both parties.

Kruvi, Noy, ‘The Pandemic Special with a Side of Shut-Downs: A Note on NYC’s Restaurants in the Age of COVID-19’ (SSRN Scholarly Paper No 4321187, 14 April 2021)
Abstract: There is an old phrase that resonates from time immemorial throughout the streets of New York City: carpe diem. Latin for ‘seize the day,’ the Roman poet Horace used the phrase to express the attitude of enjoying life for as long as one still can. The streets of New York City invite all of its walkers to partake in the celebration, by offering endless bars and restaurants to explore. This feeling is irresistible when walking around Downtown, in search of hidden gems. Even a busy lunch hour in Midtown is filled with a wonderous array of diverse cultural foods that some locals have mastered. Yet there is a good reason why Horace emphasized enjoying life while one still can: like waking up from a dream, it can all be gone in an instant. In 2020, when the ‘invisible enemy’ turned New York City into a ghostown almost instantaneously, the restaurant industry descended into chaos, and the timeless lesson emerged once again. SARS-CoV-2 is the virus causing the coronavirus disease (COVID-19). The World Health Organization (WHO) stated the virus originated in Wuhan, China. On March 11, 2020, the WHO declared COVID-19 a global pandemic. On the day of this declaration, New YorkCity reported its first COVID-19 associated death.5 Three weeks after the discovery of the coronavirus, NYC accounted for 5% of the world’s confirmed cases, rendering the region a global epicenter. By May 2, 2020, New York City recorded 13,831 COVID-19 deaths, and estimated an additional 5,048 probable deaths. COVID-19 is infamous for its lethal effects: the Center for Disease Control listed Covid- 19 symptoms that include ‘fever or chills, cough, shortness of breath or difficulty breathing, fatigue, muscle or body aches . . . . ’ For individuals who are at higher risk of severe illness (young children, the elderly, and those with compromised immune systems), COVID-19 is deadly. Globally, and as current as January 2021, the WHO reported 98,794,942 confirmed cases, and over two million deaths. When the pandemic struck the State of New York in March 2020, Governor Cuomo signed Executive Order No. 202, declaring a state of emergency. Shortly afterwards, the Governor signed the ‘New York on PAUSE’ Executive Order, requiring all nonessential businesses to shut down. Subsequent guidance clarified the meaning of ‘essential businesses,’ which did not include restaurants. The COVID-19 crisis in New York City eviscerated most restaurants’ capacities to conduct their ordinary business activities. Even when New York City (‘NYC’) began entering its reopening phases, the economic ramifications of COVID-19 and the Executive Orders continued to pose unprecedented hardships for restaurants. Given the substantial health risks of resuming restaurant work amidst a global pandemic, many restaurant owners concluded that reopening their businesses would be an unprofitable and dangerous affair. Accordingly, many restaurant owners diligently, although with great sadness, elected to close shop permanently. Commercial rent in Midtown Manhattan and throughout New York City is expensive. Rent may be as high as thousands of dollars per square foot. As such, the pandemic caused landlords great angst about lost income, and many began pestering small business owners for rent. Beyond pestering, landlords launched a brigade of lawsuits to recover rent owed. This crisis raises complicated questions of contract and property law regarding commercial leases in the event of unforeseeable emergencies: should defendants in breach of contract lawsuits be required to pay rent when performance of the paramount contractual terms, e.g., operating a business safely, are no longer possible? Does a global pandemic constitute an ‘act of God’ capable of triggering force majeure clauses? And in the absence of such clauses, can the common law doctrines of impossibility of performance or frustration of purpose rise up to the defense of the small business owner? Can the State and City of New York solve this matter through legislation and ordinances? This Note explores these questions, while prescribing the need for force majeure clauses in every restaurant’s lease that clearly define pandemics, and perhaps other imminent natural disasters as triggering events, as the most powerful prospective solution.This Note proceeds as follows: Part I discusses relevant background information concerning COVID-19’s impact on New York City from public health, economic, and administrative perspectives. Part I also unpacks the federal CARES Act, examining some of its economic relief programs, as well New York City’s local ordinances and their efficacies. Part II analyzes the common law doctrine of force majeure and its applicability to the COVID-19 crisis. Part III examines the usefulness of the impossibility of performance doctrine, as an alternative to force majeure. Part IV proposes mandatory force majeure legislation and tests its constitutional dimensions. Lastly, this Note will summarize the major arguments and themes, and will reemphasize the policy considerations of protecting small restaurant owners from unjust enrichments in the COVID-19 context.

LeBrun, Daniel, ‘Keeping the Lights on through Dark Times: How Subchapter V Bankruptcy Should Protect Small Businesses Decimated by the Pandemic’ (2021) 37(3) Touro Law Review 1575–1604
Abstract: Small to mid-market, independent businesses are at the heart of our economy and play a pivotal role in job creation. While it’s estimated by the House of Representatives that these companies account for over half of overall U.S. employment, they have been traditionally underserved in bankruptcy law. Historically, the resources necessary to complete a chapter 11 bankruptcy are not within reach for these small to mid-market businesses. Passed in 2019, the Small Business Reorganization Act has modified the Bankruptcy Code to provide new avenues for these small businesses in need. Impactful in its own right, it has emerged as a lifeline to small businesses decimated by the pandemic. This Note will focus on the fundamental changes to the Bankruptcy Code brought by the SBRA and what improvements can still be made.

Lotito, Michael J, James Paretti and Littler Mendelson, ‘New Federal Coronavirus (COVID-19) LAWS: A Summary of the New Laws Impacting Your Franchise during the Coronavirus Pandemic’ (2020) 52(4) Franchising World 16–19
Abstract: The article discusses New Federal Coronavirus Laws. Topics include The FFCRA creates two limited-duration programs for providing workers impacted by the coronavirus with paid sick leave and paid ‘family’ leave under the federal Family and Medical Leave Act (FMLA); and the CARES Act provides additional economic support for individuals and businesses to maintain operations, retain workers and increase unemployment benefits under state-administered unemployment compensation systems.

Moszyńska, Anna and Krzysztof Świątczak, ‘The Impact of the COVID19 Pandemic on Polish Commercial Law’ in Frydrych-Depka, Anna, Maciej Serowaniec and Zbigniew Witkowski (eds), Pandemic Poland: Impacts of Covid-19 on Polish Law (Vandenhoeck & Ruprecht, 2021)
Abstract: The paper is part of a general discussion on balancing the conflicting interests and finding the right solutions that, on the one hand, could avoid too much interference with the principle of the market economy, and in particular the principle of freedom of business conduct and, on the other hand, could appropriately protect, the supreme values, such as human life and health. 149

Pacheco, Thomas, ‘Top Legal Issues for 2020: The Legal Developments You Need to Know’ (2020) 52(4) Franchising World 24–27
Abstract: The article discusses legal developments related to Covid-19. Topics include California Consumer Privacy Act went into effect on January 1, 2020, the CCPA establishes consumer rights with regard to data; California’s AB 5 law finally came into effect in January 2020; and The Protecting the Right to Organize (PRO) Act. :

Rachmawati, Irma and Mohd Zakhiri Md Nor, ‘Legal and Shariah Framework of Crowdfunding in Batling Covid-19: Some Observation in Indonesia’ (2021) 6(2) BiLD Law Journal 1–9
Abstract: Crowdfunding provides a group with an alternative investment option. Its existence makes it simple for people in an organisation who have limited funds. Especially for those who have been afflicted by the COVID 19 pandemic. Crowdfunding can be an alternative financing method for Indonesian small and medium-sized businesses. The purpose of this study is to investigate the legal and Shariah framework for crowdfunding in Indonesia. This paper also investigates how Crowdfunding can benefit the Micro, Small, and Medium Enterprises (MSMEs) sectors during Covid-19 in Indonesia. The report employs qualitative legal research as its methodology. A descriptive and analytical process is used to analyse the data. This paper found that Crowdfunding benefits the MSMEs sector during the Covid-19 period. Some models of crowdfunding are based on the Shariah principles of wakaf, zakat, waqf, and sadaqah. There is no clear law governing online crowdfunding. Online crowdfunding is also vulnerable to fraud, hijacking, and illegal activity. As such, it is critical to improve Indonesia’s legal and regulatory framework for crowdfunding activities.

Ramnanun, Kajal, Rajendra Rajaram and Phocenah Nyatanga, ‘Business Rescue Legislation: Rehabilitating or Debilitating Business Rescue Success During Covid-19’ (2022) 17(4) African Journal of Business and Economic Research 101–121
Abstract: In South Africa (SA), business rescue was introduced in 2011 to assist financially distressed companies. However, the COVID-19 pandemic triggered an avalanche of economic uncertainties, and in 2020, SA became the fifth highest country affected by COVID-19 infections, resulting in a total shutdown of all businesses, except for essential services. The combined effect of lockdown levels and collapses in supply chains resulted in a 42% increase in companies filing for business rescue between April and October 2020. This study diagnosed the shortcomings of the current business rescue legislation, in the context of a pandemic, which could have affected the financial rehabilitation of those companies applying for business rescue. The discussion is grounded on existing business rescue literature. This study comprised of a critical review of existing literature, as a methodology to conduct the study. The study identified several shortcomings such as inadequate time frames for the business rescue process, insufficient definition of reasonable prospect and a lack of procedures for a company filing for business rescue in a pandemic that could have impacted distressed companies and compromised prospects of resuscitation. The study recommends that amendments be made to current legislation as a panacea for distressed companies due to COVID-19.

Sabatino, Gianmatteo, ‘COVID-19 and Freedom to Conduct a Business’ (2021) 1(1–3) Legal Policy and Pandemics: The Journal of the Global Pandemic Network 225–270
Abstract: The present survey is meant to offer a general overview concerning the different approach that courts in several jurisdictions on a global scale adopted to deal with the potential and actual conflicts between Covid-19 related emergency measures (justified by public health interests) and the freedom to conduct a business. Such conflicts encompass either situations where business activities were closed down or limited due to the pandemic or situations in which closed businesses requested compensation or questioned the appropriateness of the relief schemes designed by public authorities. The relation between public health and economic freedoms in times of pandemic is a complex one, which is also deeply affected by how the interactions between the principles of the economic constitutions are shaped and function in different legal systems. The issue, therefore, necessarily requires the assessment of the critical connection between law and economic policy. The analysis carried out in the survey mainly revolves around case law and places great emphasis on the use of general legal principles such as proportionality, reasonableness, precaution, and non-discrimination to carry out a balancing of conflicting rights and interests. At the same time, given the factual complexity of the concrete situations triggering such conflicts, the analysis also highlights how the specific features of the ‘legal emergency’, such as the declaration of a state of emergency or the reliance on scientific evidence concerning the evolution of the pandemic, may affect the courts’ reasoning. The goal of the survey is to provide a general comparative landscape of the different approaches chosen by courts to deal with some of the economic consequences of the pandemic.

Sadeghi, Hossen and Mahdi Naser, ‘Corona Effects on Business Performance and Providing a Technological Model to Meet Its Challenges’ (2022) Journal of Law Research (advance article, published online 5 July 2022)
Jurisdiction: Iran
Abstract: The widespread spread of the corona virus has created many problems for businesses and startups. The spread of the virus has led to a sharp decline in demand for goods and services from businesses and has created many financial problems for these institutions. Challenges for businesses in the distribution and supply chains and the imposition of personnel costs, government, etc. On the one hand and increasing the willingness of society to buy their items from electronic environments leads to the growth of businesses' tendency to sell and supply products. In electronic environments. But despite preventing the spread of the virus, the new mechanism still faces challenges from financing businesses and supply chain problems, as well as new challenges such as transparency and security of exchanges. The solution presented in this field is to provide fintech loans by credit companies and do business in decentralized platforms. Of course, implementing the stated solution will require some legislative and executive policies.

Syaifuddin, Ahmad et al, ‘Community Economic Recovery Strategy with Increased Understanding of Business Law Post-Covid-19 Pandemic’ (2022) 5(8) International Journal of Social Science Research and Review 466–474
Abstract: The community’s struggle to face the Covid-19 Pandemic is not only to be healthy, but also to be able to maintain the existence of the economy as a real form of maintaining the sustainability and welfare of life. The understanding of the community that is required to be creative in creating opportunities must be balanced with an understanding of the legal instruments that are prepared so that creativity is always carried out within the correct legal framework. The government program in the form of National Economic Recovery (PEN) through PP 23 of 2020 which was amended by PP No. 43 of 2020 requires sufficient understanding for the community. The level of public understanding of legal instruments, especially business law will create public trust and all stakeholders to realize economic recovery and growth which is expected to realize the role of the State in protecting and prospering the people. Legal institutions are present to provide legal certainty so that everything is expected to run safely and orderly. Business efforts that prioritize the principle of profit and loss require the presence of legal provisions regarding business so that business activities can run smoothly, orderly, safely and comfortably. The type of normative juridical research is used in this study, while still taking data on the level of public understanding as initial information. The results of the study show that the public’s understanding of the provisions of business law is an important key to achieving the expected benefits and legal certainty. It can’t have a big impact when the public’s understanding of the regulatory materials is not comprehensively obtained by the community. Improving understanding of the provisions of this business law is the key to increasing public confidence in taking business steps that are safer and more comfortable and do not pose legal risks for business people.

Tong, Edwin, ‘Singapore Government’s Responses to the COVID-19 Crisis: An Overview and Analyses of the Salient and Novel Legal Issues’ 2021 Singapore Comparative Law Review 28–41
Abstract: Amidst the pandemic, the Singapore Government rolled out various crisis management measures to minimise and cushion the economic impact, preserve jobs and capabilities, and support households. First, the Ministry of Finance passed a total of four budgets in 20204 which committed close to S$100 billion of support measures to deal with COVID-19. Some of the key measures to support businesses and workers included the Job Support Scheme, which provided wage support to employers, in which firms in the hardest-hit sector received the most support. Other key measures included the SGUnited Jobs and Skills Package to help Singaporeans access immediate short-term as well as longer term job opportunities and acquire job-related skills and capabilities. In addition, the Self-Employed Person Income Relief Scheme provided cash pay-outs to self-employed persons with less means and family support whose livelihoods have been affected by COVID-19. The COVID-19 Support Grant and COVID-19 Recovery Grant also provided temporary financial support to workers in lower- to middle-income households that had suffered job loss or significant income loss due to COVID-19. Second, the Monetary Authority of Singapore worked with banks on a series of voluntary initiatives by the financial institutions, such as the deferment of payments on mortgages. Third, the focus of this article, the Ministry of Law ('MinLaw') introduced legislation to provide reprieve to affected businesses and individuals. MinLaw enacted the COVID-19 (Temporary Measures) Act ('COTMA'), which was amended seven times to refine Singapore's response to the evolving COVID-19 situation, and also introduced the Simplified Insolvency Programme ('SIP') and Sole Proprietors and Partnerships ('SPP') Scheme to provide distressed small businesses with an avenue for simplified and costefficient debt-restructuring and insolvency proceedings. This article provides a brief overview and analysis of the salient or novel legal issues arising from some of the key relief measures introduced by MinLaw:
a) Relief for inability to perform contractual obligations under Part 2 of COTMA;
b) Rental relief framework under Part 2A of COTMA;
c) Relief for contracts affected by construction delays under Part 8 of COTMA;
d) The Re-Align Framework under Part 10 of COTMA; and
e) The SIP and SPP Scheme.

Trakic, Adnan (ed), Covid-19 and Business Law (De Gruyter, 2021)
Book Summary: The COVID-19 pandemic has had extraordinary effects on human lives and economies around the world. Many countries have introduced various measures to stop the spread of the virus and preserve human lives and livelihoods. Some commentators have considered these measures extreme, such as the restrictions imposed on people’s movement and lockdown of countries’ borders. While these measures have undoubtedly saved lives and curbed the spread of the deadly virus, they have also produced some unintended legal implications for individuals and businesses, particularly in the areas of contractual obligations, employment relationships, tourism and hospitality, company law, competition law, human rights and the rule of law, protection of vulnerable groups like migrant workers, and access to judicial and legal services. COVID-19 and Business Law: Legal Implications of a Global Pandemic identifies and discusses specific legal challenges caused by the COVID-19 pandemic in these areas and suggests possible ways in which they could be remedied.

Weshah, Sulaiman et al, ‘The Impact of National Defense Law Related to (COVID-19)’s Lockdown on Businesses’ Cash Flows & Liquidity (Jordan Case)’ in Bahaaeddin Alareeni and Allam Hamdan (eds), Explore Business, Technology Opportunities and Challenges ‎After the Covid-19 Pandemic (Springer, 2023) 1145–1151
Abstract: The world has been hit with several crises during the last decade and still suffering from emerged Corona Virus pandemic economic crisis. Jordanian firms, like other firms around the world faced a financial crisis due to decrease in consumers’ demand and obstacles with shipping goods around the world. The current study examines the impact of the Jordanian national defense law in providing a financial protection for firms during the pandemic. Also, we study the behavior of consumers and business owners using an online interview. The results show that business owners are more likely to keep using the same prices before the quarantine period and consumers are more likely to have a buying panic, which, in return, have a positive impact on cash flow. In addition, the study proposed an equation that would guide business owners in calculating the shortage of cash flow and liquidity (SCFL) during crisis periods that similar to that of the quarantine period of COVID-19.,The study provides recommendation to that governmental authorities on enactment of more regulations and policies that provide guidance on how to deal future economic crisis which should provide protection for the local economy and assist firms in getting the financial support they need go through future crisis.

Wierzbicka, Katarzyna, Marcin Zieleniecki and Sylwia Pangsy-Kania, ‘Support for Contribution Payers in the Field of Social Security in Connection with the Covid-19 Pandemic ? Selected Legal and Economic Issues’ (2023) 68(1) Studies in Logic, Grammar and Rhetoric 393–407
Jurisdiction: Poland
Abstract: The presented study raises the issue of contribution payers in the field of social insurance, in particular based on the Covid-19 pandemic. Searching for ways of supporting was determined by the deterioration of the financial condition of entrepreneurs as payers of contributions. In 2020, there were no instruments or mechanisms to support entrepreneurs in a lockdown situation, which implied the need to build such tools and the legal environment for SMEs practically from the beginning. The Social Insurance Institution (ZUS) was entrusted with the role of a stabilizer, consisting in servicing entrepreneurs as part of subsequent editions of the Anti-Crisis Shield. During the announcement of the COVID-19 pandemic, ZUS used the following forms of support for contribution payers: exemption from the obligation to pay contributions, postponement of the payment of contributions and payment of contributions in installments. The research question concerned the enforcement of the law and respect for the basic rights of entrepreneurs in the scope of the support used. In order to solve the research task legal interpretation were used in the work. The author’s considerations lead to the conclusion that forms of support used in connection with the Covid-19 pandemic turned out to be effective and may be used in the future in emergency situations. An important science contribution of the article results from the combination of the selected legal and economic aspects.

Yang, Y Tony and Brian K Chen, ‘Liability Waivers for COVID-19: Law, Policy, and Practice’ (2021) Journal of Public Health Management and Practice (advance article, published online 30 June 2021)
Abstract : As businesses reopen, the practice of asking customers to sign COVID-19 liability waivers is increasing throughout the United States. Although the courts have not yet decided the enforceability of COVID-19–related liability waivers, existing case law, as well as new executive and legislative actions, suggests that such waivers may offer some protection to businesses from liability. Nevertheless, we believe that the legal and ethical rationales underlying liability waivers are not applicable to a pandemic. We further argue that the challenging nature of and the substantial unknowns about the novel coronavirus make waivers contrary to public policy. Fears over floods of litigation appear thus far unfounded, and businesses should not be relieved from their obligation of taking reasonable safety precautions. Waivers are not a panacea to reopen businesses in an ongoing pandemic, and the ultimate protection against liability is to operate in a manner that minimizes the spread of the virus consistent with evidence-based guidelines.

Young-Geun, Kim and Jung Minjung, ‘Disaster Management and COVID-19 Financial Support for SMEs in Korea’ in Yuka Kaneko (ed), Changing Law and Contractual Relations under COVID-19: Reallocation of Social Risks in Asian SME Sectors (Springer, 2023) 27–41
Abstract: This chapter illuminates the Korean government’s disaster management and its impacts on large swaths of the economy during COVID-19. Our study shows that Korea has implemented a convergence system that closely connects numerous stakeholders with ‘communication resilience’ in preparation for big catastrophes. However, the survey results on small and medium-sized enterprises (SMEs) and banks in Seoul and Ulsan, Korea confirms there are still limits in closing the gap between economic sector contribution and need in disaster response. Our study is the first known study that has focused on both disaster management and SMEs’ financial governance, and thus it can suggest implications for the economic resilience from pandemics.

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