How has the pandemic affected the legal protection of foreign investment?

What is it about?

This chapter examines the impact of the pandemic on the reform of investment treaties from the standpoint of the exercise of regulatory powers. Although international investment law has developed through ebbs and flows, international investment agreements traditionally share a common structure and lexicon, mainly imposing obligations on states only. They also omit reference to the state’s regulatory powers. The need to recalibrate those treaties and the perceived shortcomings of investment arbitration have triggered a debate on reforming the investment treaty regime. While some states prefer protecting foreign investments through domestic legislation, others have reconsidered their investment treaties. The recent COVID-19 pandemic has intensified the debate and made such reform as compelling and timely as ever. In investigating investment treaty practice during and after the COVID-19 pandemic, the chapter analyzes standards of treatment and exceptions. It also focuses on public health-related provisions related to patents, compulsory licensing, and parallel imports. Finally, it explores the investment treaty provisions concerning technology transfer.

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Why is it important?

The chapter intends to discuss the effects of the pandemic on the legal protection of investments abroad and to contribute to the broader debate on the reform of foreign investment law.