Pandemic Responses and the Threat of Investor-State Disputes
Posted on 23.05.2021

Bilateral invest treaties (BITs) and treaties with investment provisions (TIPs) are collectively referred

to as international investment agreements (IIAs). This paper reviews how IIAs could be used by

foreign investors to challenge measures used by governments that are parties to these agreements

in their responses to the COVID-19 pandemic (SARS-CoV-2). Part 1 of this paper describes the

rationale for such investment treaties, their key provisions, the scale and outcomes of past investorstate

disputes, controversies in dispute settlement procedures, and obligations that could

potentially trigger a COVID-19 Investor-State Dispute Settlement (ISDS) claim. Part 2 identifies the

range of government pandemic responses that could be open to such claims. Part 3 discusses

government defensive arguments in response to ISDS pandemic-related challenges. Part 4 concludes

with an overview of different preventative measures governments have taken, or could take, to

minimize future ISDS risks.