The Rise of Investor-State Public Health Disputes: Lessons Learned from the Idiosyncrasy of Argentinian and NAFTA Cases in the Era of COVID-19

Abstract

Argentina’s prominence in the history of ISDS makes for a seminal case study of the tension between state measures and FDI. Argentina, like other Latin American countries, has taken a proactive approach to mitigating the current pandemic. Notably, these emergency public health decisions may hinder FDI, thus leading to an increase in investment disputes. This paper aims to comparatively analyze the past Argentinian crisis and health related NAFTA cases, using lessons learned to provide guidance in anticipation of COVID-19 disputes. In order to explore this topic, a discussion of jurisdictional and procedural questions allow for a modern application of past issues.

Keywords: COVID-19; NAFTA; Argentina; Latin America; Foreign Direct Investment/FDI; Arbitration; Public Health; Dispute Resolution; Emergency; Investment Disputes