By analysing COVID-19 measures taken by States in eleven jurisdictions –
whilst considering a range of international investment agreements (IIAs)
including ‘old-school’ European BITs, North American style treaties, and Asian investment
treaties – the authors examine to what extent COVID-19 measures could
potentially result in investment treaty claims. This study presents these
implications through a balanced overview of treaty-based grounds and
justifications, which are built upon classical investment protections and
fundamental doctrines. When State measures are examined in terms of aim,
effect, duration, and scope, a typology emerges that not only classifies, but
also reveals similar patterns crystallising across varied jurisdictions –
despite a decentralised and disparate approach taken by States. The comparative
analysis of generational differences between IIAs determines the probability of
successfully invoking claims, whilst simultaneously assessing the risks for
States seeking to rely upon treaty-based justifications. Thus, when read by
States, this legal analysis amounts to a risk assessment, and when read by
foreign investors, serves as a guide on recourse. The authors conclude that
States should include ‘pandemic-proof’ provisions in prospective IIA
negotiations, and thus, potentially ushering a dawn of new ‘pandemic-proof
IIAs’.