How the Coronavirus Crisis Challenges International Investment (Customary) Law Rules: Which Role for the Necessity Defense?

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Date: Spring 2021
Publisher: Case Western Reserve University School of Law
Document Type: Article
Length: 10,312 words
Lexile Measure: 2290L

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Abstract :

The COVID-19 pandemic is affecting every aspect of our daily life; what's more, it is affecting and will affect for some years from now the global economy. The present working paper offers a reflection on how State's restrictive trade measures are affecting foreign investors' rights. The study investigates how the exceptional circumstances of the COVID-19 pandemic can justify State's measures affecting foreign investors' rights and whether they can be legally justified under the customary international rule of the necessity defense. The first part of the paper will analyze the requirements of the states of necessity, as codified in article 25 of the ILC Draft Article. The second part of the paper will apply the requirements of the customary law rule of the necessity defense to the COVID-19 pandemic, taken into account national measures that have been taken by States during this period; it will be questioned whether the global and exceptional circumstances of the spread of COVID-19 will influence (and maybe change) the way we interpret and apply this customary rule.

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Gale Document Number: GALE|A663612010