Winning COVID-Era Arbitrations for States and Companies: A TRW Playbook (with London & Dubai context)

Prepared by TRW Law Firm — Dhaka · Dubai · London

When COVID-19 hit, governments and companies raced to secure lifesaving equipment—ventilators, PPE, oxygen plants, rapid test kits, cold-chain units, and diagnostics. Purchase orders were issued at speed; suppliers promised impossible timelines; prices gyrated; export bans landed overnight; and logistics collapsed. The result was an unprecedented wave of sales and purchase (SPA), public procurement, and logistics disputes.

This in-depth guide uses a representative COVID-era victory—as reported in the market: a South Asian State organ recovering overpayments and liquidated damages from a non-performing supplier—to extract the lessons, contract architecture, procedural tactics, and enforcement strategies that foreign companies and States still need today. Although the acute phase of the pandemic has passed, disputes are still being filed, arbitrations are ongoing, and awards are being enforced. The same stressors—force majeure claims, price spikes, supply embargoes, sanctions, freight shocks—will reappear in other crises. The playbook below is built for next time, too.

We also situate the strategy across TRW’s hubs in Dhaka, Dubai, and London: why seat selection and enforcement mapping matter; how institutions in emerging and established markets coordinate efficiently; and how to turn a paper win into cash in the bank.

For a broader overview of our cross-border disputes and enforcement approach, see TRW’s guides on International Arbitration & Cross-Border Disputes and Enforcement of Arbitral Awards (internal).

1) What actually happened in COVID-era supply disputes—and why foreign parties should still care

Across South Asia, the Middle East, and Europe, public buyers placed urgent orders with unfamiliar or newly-incorporated vendors. Many contracts were short-form, negotiated over email or WhatsApp, and governed by template Ts&Cs that had never been stress-tested for pandemics. Common patterns:

• Partial delivery or non-delivery after upfront or milestone payments.
• Spec mis-matches (non-conforming masks/respirators, wrong filtration levels, counterfeit test kits).
• Export restrictions and embargoes invoked as force majeure without proper proof.
• Freight collapse: bookings cancelled, demurrage ballooned, cold-chain broken.
• Payment manipulations: “no-setoff” language plus rolling change orders used to keep cash moving despite deteriorating performance.
• Dilatory or abusive conduct: endless excuses, fake airway bills, forged certificates, or last-minute claims of “governmental seizure”.

Well-drafted contracts and disciplined case management consistently prevailed. In the South Asian State example, the tribunal awarded full reimbursement of overpaid sums, liquidated damages, and arbitration costs—despite the supplier’s obstruction. Those same legal building blocks will remain decisive in any future supply shock.

2) Anatomy of a winning COVID-era claim

The strongest cases cohered around four planks:

1. Pure contract liability. Missed delivery schedules; failure to provide conforming goods; breach of inspection/warranty regimes; refusal to cure; misuse of advance payments or performance security.
2. Restitution / unjust enrichment. Where contracts were unclear or rescission was elected, claimants recovered overpayments and prepayments that conferred a benefit with no lawful basis once performance failed.
3. Liquidated damages (LDs). Tribunals upheld LDs where they reflected a genuine pre-estimate of delay/shortage harms—not a penalty. In emergency procurement, LDs tied to per-day delay, per-lot shortfall, or per-unit non-conformity were persuasive when contemporaneous records showed why the numbers were chosen.
4. Costs and interest. Well-run cases documented dilatory or abusive conduct and obtained costs on conduct grounds, plus pre- and post-award interest in a currency practical for enforcement.

Want to see how we calibrate LDs and expectation vs. reliance damages in commercial contracts? See Construction & Projects and International Arbitration & Cross-Border Disputes (internal).

3) Force majeure, change in law, hardship: how tribunals sorted the noise

Everyone talked “force majeure” in 2020–21. Tribunals took a nuanced path:

• Force majeure is about impossibility, not inconvenience. Export bans, factory shutdowns, and port closures qualify only if the party shows (a) the causal link; (b) reasonable mitigation (alternate suppliers, modes, routes); and (c) timely, compliant notice under the clause.
• Change in law provisions often mattered more than generic FM. Where a government imposed an export licence regime mid-contract, suppliers who applied promptly, escalated with authorities, and proposed lawful alternatives (e.g., partial deliveries, substitutes meeting specs) fared better.
• Hardship and renegotiation clauses helped where performance remained possible but ruinous (extreme price spikes). But hardship relief was conditioned on transparency: ledgers, production costs, freight quotes, and the counterparty’s right to re-source if the new price was unreasonable.
• Sanctions and restrictions on professional/IT services (later in the pandemic) intersected with hearing logistics and deposits. Tribunals accepted creative, licensed payment rails and hybrid hearings where compliant.

Practical lesson: The winning side documented notice, mitigation, and alternatives in real time. Parties who merely said “COVID” lost credibility.

4) Procurement context: how State buyers keep awards enforceable

When the buyer is a State organ, the contract’s law and the arbitration clause must pre-empt procedural ambushes:

• Clear consent to arbitration by the State entity; waiver of sovereign immunity from suit and execution to the extent permitted by law; designation of non-immune commercial assets for execution.
• Seat and rules aligned with the asset map (where will you collect?) and interim-relief needs. For South Asian states working with global vendors, common choices were London (LCIA/ICC), Dubai/DIFC (DIAC/LCIA/ICC), or a capable regional centre when facts and budget favoured it.
• Transparency and auditability in awards. Tribunals recorded findings on abuse, forgery, or obstruction where proved—useful both for public accountability and for public policy showings at recognition.
• Public procurement hygiene. Even when the State was the victim, opposing counsel attacked tender irregularities, direct award shortcuts, or spec changes. Where the State documented emergency authorisations and chain-of-approval, tribunals focused on supplier breach, not procurement politics.

See our notes on sovereign-party drafting and enforcement in Enforcement of Arbitral Awards (internal).

5) Why seat and institution still matter: Dhaka–Dubai–London triangulation

London (seat or enforcement hub)

• Strengths: world-class court support (freezing orders, disclosure orders, anti-suit), predictable treatment of force majeure vs. hardship, and deep expertise with sovereign counterparties.
• Use cases: large tickets; multi-source procurements funded by international lenders; vendors with attachable assets in UK/EU banking systems.
• Enforcement: English recognition orders travel well; banks respond swiftly to English third-party debt orders once the award is recognised.

Dubai / DIFC

• Strengths: modern, pro-arbitration courts; Middle East banking rails; logistical hub for hybrid hearings and licensed escrow when counterparties are in MENA or Africa.
• Use cases: regional suppliers, EPC logistics, port-throughput disputes, mixed civil/common-law evidence cultures.
• Enforcement: DIFC judgments can be a springboard to onshore execution where bilateral pathways exist; institutions like DIAC and ICC (Dubai) offer Emergency Arbitrator tools.

Dhaka coordination

• Strengths: for South Asian State organs and companies, Dhaka counsel align local procurement and foreign-seat strategy, ensure governance, and prepare the enforcement pack during the arbitration (not after).

Takeaway: pick the seat for the court you want on your side, pick the institution for the case management you need, and pick the enforcement jurisdictions for the assets you can reliably reach.

For side-by-side seat selection tips, visit International Arbitration & Cross-Border Disputes (internal).

6) Case management that beats delay and abuse

Winning COVID-era cases had front-loaded discipline:

• Procedural Order 1 (PO1) as a sanctions & integrity protocol: named service emails, secondary service channels, encryption and approved platforms, Redfern schedule for targeted production, confidentiality orders, and expert data rooms with versioning.
• Early issues hearing: jurisdiction/force majeure/change-in-law triaged quickly to narrow merits and quantum.
• Document hygiene: contemporaneous hashes of contracts, POs, airway bills, inspection reports; chain-of-custody for lab results; third-party certifications for lot testing.
• Expert clarity: a single joint expert on freight escalation or supply-chain feasibility where possible; if opposing experts, hot-tubbing to expose assumptions.
• Interim relief: requests for status quo orders (no disposal of funds received as advances), escrow of undelivered order funds, or on-site inspection protocols for time-critical equipment.
• Costs pressure: tribunals warned that abuse (fake documents, avoidable adjournments, “data dumps”) would carry costs consequences—and followed through.

7) Substantive levers: how contract language decides outcomes

A) Delivery & inspection

• Drop-dead dates for critical items; per-lot delivery schedules with time of the essence language.
• Pre-shipment inspection rights with accredited labs; right to reject and right to cure windows; storage and disposal rules for non-conforming goods.

B) Payment & security

• Milestones pegged to verifiable events (passed inspection, confirmed shipment, customs clearance).
• Performance security (on-demand guarantees) with clear call conditions and governing law; escrow for large prepayments.
• No-setoff clauses narrowed to avoid injustice when supplier defaults (or include trust mechanics for advances).

C) Force majeure / change in law / hardship

• FM lists pandemics and government acts; strict notice and evidence duties; mitigation steps enumerated; suspension caps with long-stop.
• Change in law adjusters for export bans, licensing, or testing standards; objective pricing indices for temporary price relief.
• Hardship gateways with transparent cost-plus disclosures; right for buyer to re-source without liability if new price fails fairness tests.

D) Warranties & indemnities

• Specification warranties (e.g., EN 14683, NIOSH, CE-mark) plus traceability obligations.
• IP and regulatory indemnities (e.g., counterfeit or unapproved devices).
• Outcome warranties avoided—tribunals enforce input warranties (conformity & compliance) more predictably than promises of clinical efficacy.

E) Dispute resolution

• Seat, rules, language, law of the arbitration agreement stated expressly; emergency arbitration enabled; court interim relief preserved.
• Service by named emails and addresses; consolidation/joinder to corral affiliates and financiers.
• Confidentiality with carve-outs for regulatory disclosures.

We maintain model clause suites for emergency procurements and high-velocity supply chains: see International Arbitration & Cross-Border Disputes and Construction & Projects (internal).

8) Evidence strategy: your compliance file is your merits file

Tribunals rewarded contemporaneous, auditable proof:

• Procurement trail: approvals, emergency justifications, board minutes, tender deviations approved under law.
• Supplier diligence: KYC, beneficial ownership checks, factory audits, sample test certificates, references.
• Logistics diary: booking confirmations, carrier notices, port closures, customs alerts, temperature logs for cold-chain.
• Inspection & lab data: serialised results; lab credentials; chain-of-custody.
• Communications: time-stamped notices; mitigation proposals; alternate specs/routes; freight quotes.
• Financials: advance payments, drawdowns, guarantees, escrow status, bank rejections, and FX impacts.

Good cases looked less like advocacy and more like forensic project files.

9) Remedies that tribunals can grant—and courts will enforce

Draft relief requests so that enforcing courts and banks can act:

• Restitution & refund of advances for undelivered lots; title re-vesting for rejected goods.
• Liquidated damages for delay/shortfall, with calculation examples.
• Specific measures: product recalls, destruction under supervision, or re-labelling at supplier’s cost (where safety is implicated).
• Interest at sensible commercial rates tied to the currency/country of enforcement.
• Costs with a conduct narrative.
• Modular, severable orders: so courts can enforce compliant parts even if local policy delays a component.

For award drafting tactics that ease recognition in multiple jurisdictions, see Enforcement of Arbitral Awards (internal).

10) Recognition and enforcement: turning a win into money

Enforcement planning should start before the Request for Arbitration:

1. Asset map: identify accounts, receivables, inventory, and parent-level assets in friendly jurisdictions (UK/EU/UAE/Singapore).
2. Parallel tracks: recognition in two or more jurisdictions can deter shell games.
3. Partial enforcement: execute immediately on refunds and costs while reserving more complex orders.
4. Bank engagement: provide banks with certified awards/orders and KYC documents to speed TPDO compliance.
5. Resisting spurious counter-claims: fraudsters sometimes file counter-arbitrations with manufactured awards; have authentication letters from the actual institution ready.
6. Public policy preparation: your record should display safety and compliance interests—crucial where medical devices are involved.

London and Dubai are particularly effective launchpads for global execution programmes. Dhaka counsel coordinates localisation and any necessary public-law interfaces.

11) Preventing “COVID-fraud” in the next crisis

Some suppliers forged certificates, whited-out lot numbers, or spoofed shipping documents. Courts and tribunals punished this behaviour, but prevention is better:

• Accredited labs and QR-verifiable certificates.
• Serialisation and track-and-trace for high-risk lots; cold-chain sensors with immutable logs.
• Escrow and step-deliveries: money moves only when the digital and physical trail matches.
• Vendor scorecards and blacklists shared across agencies and buyers.
• Integrity clauses allowing on-site audits and third-party forensic inspections.

We detail data-integrity measures and cyber-secure evidence protocols in International Arbitration & Cross-Border Disputes (internal).

12) A buyer’s checklist (tear-out)

Before signing
[ ] Seat, rules, law of arbitration agreement stated.
[ ] Delivery milestones with drop-dead dates; inspection and rejection powers.
[ ] Price adjustment mechanics (freight, inputs) and change-in-law.
[ ] FM notice and mitigation duties; suspension cap and long-stop.
[ ] Performance security; escrow for advances.
[ ] LDs calibrated to real harm.
[ ] Service, consolidation, and confidentiality built in.

During performance
[ ] Log every notice; insist on lab credentials; preserve serialised data.
[ ] Record mitigation options and supplier responses.
[ ] Use partial shipments tied to payment gates; maintain escrow.

When dispute looms
[ ] Send compliant breach and cure notices.
[ ] Propose workable alternatives to show reasonableness.
[ ] Prepare interim-relief pack (escrow, status quo, inspection).
[ ] Agree PO1 integrity protocol on day one.

Enforcement
[ ] Draft modular relief; prepare translations/certifications in advance.
[ ] Map assets; file recognition in parallel hubs (London/DIFC).
[ ] Engage banks proactively on TPDOs.

13) A supplier’s checklist (because good suppliers win too)

Before signing
[ ] Avoid impossible SLAs; reflect realistic lead times and freight volatility.
[ ] Build change-in-law and hardship gates with transparent cost-proof duties.
[ ] Clarify inspection criteria and cure periods; cap LDs reasonably.
[ ] Ensure payment rails will function in a crisis (alternative currencies, bank substitution).

During performance
[ ] Notify early; prove mitigation; offer fair substitutes meeting specs.
[ ] Keep clean factory and logistics records; cooperate with inspections.

When dispute looms
[ ] Don’t over-claim FM; propose credible, cost-supported adjustments.
[ ] Offer escrowed partial refunds if cures will be late—tribunals reward candour.

Enforcement risk
[ ] Maintain assets in reputable jurisdictions; don’t invite freezing orders by moving cash reactively.

14) What a model award looks like (and why the form matters)

A robust award includes:

• Clear factual chronology with documentary anchors (not just summaries).
• Findings on notices, mitigation, and whether FM/change-in-law criteria were met.
• Causation analysis linking breaches to harms; quantum worksheets.
• Operative orders: numbered, severable, with currencies, dates, and interest logic.
• Costs and rationale.
• Seat, signatures, date/place aligned to rules and practice.

Such awards minimise recognition fights and allow bank compliance teams to process TPDOs cleanly.

15) How TRW runs these cases end-to-end

• Front-end engineering: draft dispute and payment architectures that survive stress; mirror clauses across purchase orders, framework agreements, and financing side letters.
• Case choreography: harmonise Dhaka, Dubai, and London moves—seat filings, EA applications, recognition petitions, and escrow steps.
• Evidence discipline: build the compliance spine (procurement, inspection, logistics, finance) as if the case will be audited; track serials and data immutably.
• Interim measures & settlements: use EA and court relief to stabilise the situation and drive reasoned settlements (consent awards, staged refunds).
• Enforcement: modular awards, currency options, bank-ready documentation, and parallel recognition to prevent asset flight.

Explore our approach further: International Arbitration & Cross-Border Disputes and Enforcement of Arbitral Awards (internal).

16) Looking forward: beyond pandemics

The next systemic shock could be a cyber event, sanctions cascade, shipping canal closure, or critical mineral crunch. The mechanics are the same:

• Supply disruption → force majeure/change-in-law friction.
• Price shock → hardship and renegotiation.
• Quality and safety → inspection, warranty, recall.
• Cash flow stress → escrow, security, and targeted interim relief.
• Cross-border enforcement → seat selection and asset mapping.

If you integrate the contract scaffolding, evidence hygiene, and enforcement design outlined here, your organisation will be positioned to win fast and collect cleanly—whether you are a State buyer or a global supplier.

17) Key takeaways (one screen)

• Seat & enforcement first: choose the court you want behind you (London/DIFC) and map assets early.
• Write for crisis: FM/change-in-law/hardship must require notice + mitigation + proof, with caps and long-stops.
• Pay for performance: escrow and milestones; call guarantees when due.
• Prove integrity: your contemporaneous compliance file wins cases.
• Draft enforceable relief: modular orders, clear currency/interest, severability.
• Run a triangle: Dhaka strategy + Dubai logistics & banking + London court muscle.
• Act fast: abuse and delay are beaten by early PO1 integrity protocols and targeted interim measures.

TRW Law Firm — Contact

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Further internal reading: International Arbitration & Cross-Border Disputes · Construction & Projects · Enforcement of Arbitral Awards · Corporate & M&A Disputes

This article provides general guidance and is not legal advice. For tailored drafting, emergency procurement disputes, or an enforcement plan, contact TRW’s cross-border arbitration team in Dhaka, Dubai, or London.