Legal considerations when advising on business continuity

Abstract

With the rise of climatic concerns and cybersecurity incidents comes the expectation that investments are made in business continuity measures. This expectation has legal teeth from the perspective of shareholders as well as regulatory bodies, contracting attorneys, vendors and supply chain entities. This paper explores the use of US legal system as a tool for enforcing liability and action from decision makers like the board of directors and C-suite officers, as well as between the parties of contracts. Shareholder derivative lawsuits, which occur predominately in the USA but have, as recently as 2020, started to include foreign-owned businesses, and breach of contract claims are two of the more prominent issues with business continuity tie-ins. This paper intends to arm the business continuity professional with a knowledge base about legal liability for failure to have a business continuity plan, an understanding of how disasters and disruptions will excuse the full performance of a contract and an ability to determine proper courses of action with respect to supply allocation after an incident.