Both Possible and Improbable—Could COVID-19 Measures Give Rise to Investor-State Disputes?

Abstract

This Article explores the role of investment law and investment arbitration in (and after) the COVID-19 crisis in the context of transnational health policy. This Article discusses a technical possibility (COVID-19 measures can give rise to investor-state disputes) and explains why most of these claims will probably not be successful (most COVID-19 measures are covered by international defenses). Through a comprehensive survey of measures adopted across 50 jurisdictions, the Article shows that most of these measures are in line with the World Health Organization regulations. Furthermore, these domestic measures could be subject to a number of international law exceptions, allowing States to justify the potential violations. Nevertheless, the Article identifies a minority of measures that may have the potential to lead to successful claims. Paradoxically, the most problematic measures (such as taxation measures and sovereign debt increase) only indirectly address the pandemic.

Keywords: ISDS, investment treaties, investor-state arbitration, exceptions, taxation, sovereign debt