Potential investor claims and possible state defenses during the covid-19 emergency

Abstract

Since it was announced as a public health emergency of international con-cern in 2019, Covid-19 has caused enormous loss of property and life. The country's emergency policies in responding to the Covid outbreak are nu-merous, such as closing public transportation and prohibiting the export of medical devices. These policies have potentially harmed the interests of in-vestors. This study has three purposes: Investors' potential claims to chal-lenge state measures addressed to Covid-19, the legal defences of states, and the possibility of an international investment dispute. This study shows that investors' potential claims may be delivered based on violations of the prin-ciples of fair and equal treatment, full protection and security, and national treatment and the most favoured nations. While a state can defend itself based on the principles of force majeure and state necessity, states can also defence through Non preclude measures or right to regulate clause in inter-national investment agreements. In addition, it would also be better to build international solidarity and cooperation to mitigate and defeat the Covid-19 pandemic than sue the government before ISDS. States need collective ac-tion to avoid a surge of investor-state Arbitration. Governments' policy to combat Covid-19 is to be considered as acting in necessity and therefore cannot be found in breach of their investment treaty obligations as long as that policy meet the necessity, proportionate, and non-discrimination re-quirements.