Potential Investor Claims and Possible State Defences During the Covid-19 Emergency

Sefriani Sefriani, Seguito Monteiro


Since it was announced as a public health emergency of international concern in 2019, Covid-19 has caused enormous loss of property and life. The country's emergency policies in responding to the Covid outbreak are numerous, such as closing public transportation and prohibiting the export of medical devices. These policies have potentially harmed the interests of investors. This study has three purposes: investors' potential claims to challenge 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 principles 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 international 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 action 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 requirements.


Country’s Emergency Policy; Covid-19; Investor Claims; State Defence.

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Bernasconi-osterwalder, Nathalie. "Protecting Against Investor-State Claims Amidst COVID-19: A Call to Action for Governments," 2020, 1–10.

Buffalow, Gregory C. “The Force Majeure Defense - Recent Cases, Boilerplate and Analysis.” Journal of Maritime Law and Commerce 42, no. 2 (2011): 211–30.

Burke-White, William W.; Von Staden, Andreas. “Investment Protection in Extraordinary Times : The Interpretation and Application of Non-Precluded Measures Provisions in Bilateral Investment Treaties.” Virginia Journal of International Law 48, no. 2 (2008): 309–410.

Caton, Natalie. “Coronavirus Covid-19 : The Legal Impact on Force Majeure Events (Australia),” no. January (2020): 1–5.

Dellinger, Myanna. “Rethinking Force Majeure in Public International Law.” Pace Law Review 37, no. 2 (2017): 455.

Ditrih, Stefan, Svetlana Marković, and Olgica Milošević. “Change of Circumstances and Force Majeure Clauses in Serbian Legal System and Sources of International Uniform Law.” Economic Themes 57, no. 1 (2020): 67–86. https://doi.org/10.2478/ethemes-2019-0005.

Giorgetti, Chiara. “International Health Emergencies in Failed and Failing States.” Georgetown Journal of International Law 44 (2013): 1347.

Hails, Oliver. “Epidemic Sovereignty ? Contesting Investment Treaty Claims Arising from Coronavirus Measures,” 2020, 1–5.

HRW. “Coronavirus: Can It Be A Force Majeure Event?,” 2020.

ICSID. Continental Casualty Co. v. the Argentine Republic, ICSID Case No. ARB/03/9, Award, 160 (September 5, 2008) (2008).

Jalloh, Charles Chernor. “ICSID Annulment-U.S.-Argentina Bilateral Investment Treaty-ILC Articles on State Responsibility-Necessity- Essential Interests-Lawful Measures during Economic Crises.” The American Journal of International Law, n.d., 548.

Jones, Doug. “Student Advocate Committee Investor-State Arbitration in Times of Crisis Author ( s ): Doug Jones Source : National Law School of India Review , Vol . 25 , No . 1 ( 2013 ), Pp . 27-61 Published by : Student Advocate Committee Stable URL : Https://Www.Jsto” 25, no. 1 (2020): 27–61.

Khan, Fazal R. “Ensuring Government Accountability during Public Health Emergencies.” Harvard Law & Policy Review 4, no. 2 (2010): 319–38.

Lovells, Hogan. “Covid-19 : Will State Measures Give Rise to a New Set of Investment Claims ?” Hogan Lovells, 2020. https://www.hoganlovells.com/~/media/hogan-lovells/pdf/2020-pdfs/2020_04_02_covid19-and-investment-arbitration.pdf?la=en.

Martinson, Robert. “Is This Really Necessary: The Scope of the Doctrine of Necessity in 21st Century Investment Treaties.” Creighton International & Comparative Law Journal 9, no. 1 (2017): 1–28.

Paddeu, Federica, and Freya Jephcott. “Covid-19 and Defences in the Law of State Responsibility: Part II,” no. March (2020): 1–5.

———. “Covid-19 and Defences in the Law of State Responsibility: Part II,” no. iv (2020): 1–7.

Polkinghorne, Michael, and Charles B. Rosenberg. “The Ebola Epidemic and Force Majeure : Expecting the Unexpected.” Alternatives to the High Cost of Litigation 32, no. 11 (2014): 165–78. https://doi.org/10.1002/alt.21557.

Sefriani. “The Urgency of Non-Precluded Measures Clause in Indonesian Bilateral Investment Treaty.” Padjadjaran Journal of Law 6, no. 2 (2019): 233–53.

Sutton, Marie. “Forced Quarantine & Isolation: Does the Law Adequately Balance Individual Rights and Societal Protection.” U. La Verne L. Rev. 39 (2017): 98.

Sykes, Alan O. “Economic ‘Necessity’ In International Law.” American Journal of International Law 109 (2015): 1–25.

Yannaca-Small, Katia. “Fair and Equitable Treatment Standard: Recent Developments.” Standards of Investment Protection 7, no. 1 (2012). https://doi.org/10.1093/acprof:oso/9780199547432.003.0006.

DOI: http://dx.doi.org/10.28946/slrev.Vol5.Iss2.1067.pp236-246


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