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Responses to the Covid-19 Pandemic and Customary Law Defences: Force Majeure and the State of Necessity

Collins, D. ORCID: 0000-0002-5517-6949 Responses to the Covid-19 Pandemic and Customary Law Defences: Force Majeure and the State of Necessity. In: Faccio, S. & Pertile, M. (Eds.), International Investment Law and the Pandemic. . Leiden, Netherlands: Brill.


Measures implemented by many countries around the world to deal with the Covid-19 pandemic could lead to claims by adversely affected foreign investors against host states in investment arbitration tribunals. In addition to defences which may be available in applicable investment treaties, customary international law may afford some protection for host states in responding to these charges. These customary defences include force majeure, distress and necessity. The police powers doctrine, which may be an aspect of customary international law, could also be relevant. Necessity would appear to be the best option for host states to argue, however problems may arise for respondents when seeking to demonstrate their requisite non-contribution to the circumstances of the immanent peril and in proving that the measures were proportionate / reasonable to the threat. In the context of many countries’ response to Covid-19 it would seem that these two requirements are mutually exclusive. Ultimately, the success of customary international law defences in investment arbitration will likely depend on whether countries’ various measures are viewed as effective or counterproductive – unquestionably a matter of much controversy throughout the world.

Publication Type: Book Section
Additional Information: Copyright, 2024, Brill. All rights reserved.
Subjects: H Social Sciences > HG Finance
H Social Sciences > HN Social history and conditions. Social problems. Social reform
K Law
Q Science > QR Microbiology > QR180 Immunology
R Medicine > RA Public aspects of medicine > RA0421 Public health. Hygiene. Preventive Medicine
Departments: The City Law School
The City Law School > Academic Programmes
The City Law School > International Law and Affairs Group
SWORD Depositor:
[thumbnail of covidcustomaryintlaw.pdf] Text - Accepted Version
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