‘Necessity’ due to COVID-19 as a Defence to International Investment Claims

Abstract

Abstract Sovereign States have had to take drastic measures to contain the spread of the SARS-CoV-2 virus, including measures severely restricting the operation of businesses in their territory. In addition, and because of, the public health crisis, States will be forced to take a series of measures to stimulate their economies. These measures are likely to affect investments that benefit from international investment protection, leading these investors to contemplate initiating arbitration proceedings against the host State. This article examines whether, when faced with such claims, host States will be able to resort to the doctrine of necessity under customary international law to defend the measures that they have taken. In doing so, it draws on the application of the doctrine of necessity in international investment arbitration so far, including its application to disputes arising out of the Argentine financial crisis. The article proposes a more analytical approach to the doctrine of necessity in customary international law, which will be vital if the doctrine is to remain relevant as a measure of last resort to which States can turn when faced with a crisis.