The Risk of ISDS Claims Through National Investment Laws

Another "Damocles sword" hanging over governments' COVID-19 related measures?

By Suzy H. Nikièma, Nyaguthii Maina on September 29, 2020

This brief is presented in the form of a Q&A outlining which national law provisions could lead to ISDS claims, why ISDS in investment laws could be a cause for concern, whether investors can challenge COVID-19 measures under investment law-based ISDS clauses, the interaction between such laws and old-generation bilateral investment treaties, and ways to mitigate the risks of investor–state arbitration.

The publication complements a recent IISD commentary that also looked at the ISDS risks for COVID-19 measures, with a focus on international investment agreements.