As the COVID-19 pandemic continues to unravel without regard to national borders, countries around the world are faced with both public health and economic issues on a scale not previously seen. In this context, international law, particularly international investment law, continues to apply. It does not present a binary choice between “State protection” and “investor protection” but involves a balancing of rights and interests. The measures adopted by sovereign States using their regulatory “police powers” to respond to the pandemic may have a significant impact on foreign investments situated within their territory. Therefore, it is imperative that countries hosting foreign investments take into account applicable international law safeguards and limits when adopting reactive measures, such as acting in a non-discriminatory and non-arbitrary manner, in order to prevent a potential fallout from disputes with foreign investors. Conversely, foreign investors must also be watchful of these intrusive measures, and should be pro-active in considering whether action taken by a host State is compliant with that State’s obligations under international treaty and customary law and whether the State’s conduct might give rise to an international law remedy in addition to remedies available under the laws of the host State.
