Necessity and the COVID-19 Pandemic

Capital Markets Law Journal (2020 Forthcoming)

Duke Law School Public Law & Legal Theory Series No. 2020-37

9 Pages Posted: 13 May 2020

See all articles by Mark C. Weidemaier

Mark C. Weidemaier

University of North Carolina School of Law

Mitu Gulati

University of Virginia School of Law

Date Written: May 12, 2020

Abstract

As the global economic downturn from the coronavirus worsens, many sovereign debtors will have to choose between paying creditors and fighting the virus. As of this writing in May 2020, official sector creditors have taken steps to grant relief to the poorest nations, but there is little sign that private creditors will coordinate to voluntarily grant relief. And that raises the likelihood that creditors who do not receive their payments will litigate. Customary international law, through the rarely applied doctrine of “necessity,” may provide sovereign debtors with some respite. This doctrine allows sovereigns to temporarily delay performance of international obligations when necessary to mitigate a grave and imminent danger to the populace.

Keywords: necessity, international law, COVID-19, sovereign debt

JEL Classification: F33, F34, K12, K22, K33

Suggested Citation

Weidemaier, Mark C. and Gulati, Mitu, Necessity and the COVID-19 Pandemic (May 12, 2020). Capital Markets Law Journal (2020 Forthcoming), Duke Law School Public Law & Legal Theory Series No. 2020-37, Available at SSRN: https://ssrn.com/abstract=3599503 or http://dx.doi.org/10.2139/ssrn.3599503

Mark C. Weidemaier (Contact Author)

University of North Carolina School of Law ( email )

Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States
919.843.4373 (Phone)

Mitu Gulati

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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