“COVID-19 Measures and Investment Treaty Claims: An Asian Perspective“
Yi Tang (PhD Candidate)
Abstract: The COVID-19 pandemic has prompted unprecedented government measures worldwide. While essential for protecting public health, these measures may have negatively impacted foreign investments, leading to conflicts between host states’ rights to safeguard public interests and their obligations to protect foreign investment under international investment agreements (IIAs). This chapter explores the conflicts between COVID-19 measures and IIA obligations within Asian context, focusing on two primary grounds for potential investment treaty claims—breaches of the fair and equitable treatment (FET) standard and claims of unlawful expropriation. Through an analysis of the regulatory responses in Asian states, this study elucidates the complexities of these claims. The findings suggest that FET claims may become more prominent than expropriation claims in the context of the COVID-19 crisis, given their broader scope of application and lighter burden of proof. Through a forward-looking lens, this exploratory analysis provides insights for both Asian host states and foreign investors, aiming to map and navigate the potential landscape of future investment disputes in the post-pandemic era with greater clarity and preparedness.