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Commentary

Protecting Against Investor–State Claims Amidst COVID-19: A call to action for governments

This commentary takes stock of emergency measures taken to curb the spread of COVID-19 and provides governments with options for avoiding a surge of investor-state claims challenging those measures.
By Nathalie Bernasconi-Osterwalder, Sarah Brewin, Nyaguthii Maina on April 14, 2020

Governments are acting to curb the spread of COVID-19 through emergency interventions such as shutdowns and strict containment, and measures to ensure supplies of essential foods, medical equipment, and health care services.

With many of these emergency measures hitting businesses hard, they are creating an unprecedented risk of foreign investors suing governments under the web of investment treaties concluded across the globe. Our call to action is for governments to come together to either suspend treaty-based investor–state arbitration for all COVID-19 related measures or clarify the application of international law defences during these extraordinary times.Until such joint action comes into effect, governments can limit the risks of international arbitration by withdrawing consent to it. 

Commentary details