COMPLAINTS WHICH FOREIGN INVESTORS MIGHT BRING AGAINST HOST STATES DUE TO COVID-19 RESPONSE, AND THE DEFENCE HOST STATES MIGHT USE AGAINST THE COMPLAINTS

Abstract

Purpose: This summative assignment sought to explore the possible complaints that foreign investors might raise against host states, as well as how host states might defend themselves from such complaints.
 Methodology: This being a summative assignment, the author relied on review of existing literature, reference to case law and reflective learning, as well as, critical thinking to provide a critical analysis to the question. Fundamentally, the author explored the international investment treaty standards that could be used by foreign investors to raise their complaints, as well as the treaty-specific exceptions that may inform the defences by host states in response to foreign investor claims. The researcher adopted a case study design through a qualitative content analysis technique towards analysis documented information in the form of case laws, existing research literature, constitutional reports, such as international investment arbitration reports and agreement.
 Findings: First and foremost, the author found out that foreign investors might complain about the violation of the full protection and security standard. However, states might invoke the doctrine of force majeure to defend against such claims. Also, the author found out that foreign investors might complain about unfair and inequitable treatment insofar as imposing Covid-19 measures are concerned. Nevertheless, host states might rely on the defence of distress to counter any complaints that may be brought about by foreign investors. Finally, the author explored the potential complaints insofar as direct and indirect expropriations are concerned, which hosts states may defend themselves against through the provisions of the defence of necessity as well as the defence of public health.
 Unique contribution to theory, policy and practice: The author recommends that host states and foreign investors need to strike a balance between the protection of investments and public interests.