The Investment Treaty Implications of Covid-19 Responses by States

Abstract

By analysing Covid- 19 measures taken by States in eleven jurisdictions – whilst considering a range of international investment agreements (iia s) including ‘old – school’ European bit s, North American style treaties, and Asian investment treaties – the authors examine to what extent Covid- 19 measures could potentially result in investment treaty claims. This study presents these implications through a balanced overview of treaty-based grounds and justifications, which are built upon classical investment protections and fundamental doctrines. When State measures are examined in terms of aim, effect, duration, and scope, a typology emerges that not only classifies, but also reveals similar patterns crystallising across varied jurisdictions – despite a decentralised and disparate approach taken by States. The comparative analysis of generational differences between iia s determines the probability of successfully invoking claims, whilst simultaneously assessing the risks for States seeking to rely upon treaty- based justifications. Thus, when read by States, this legal analysis amounts to a risk assessment, and when read by foreign investors, serves as a guide on recourse. The authors conclude that States should include ‘pandemic- proof’ provisions in prospective iia negotiations, and thus, potentially ushering a dawn of new ‘pandemic- proof iia s’.