Considerations in Investment Arbitration in Times of a Global Pandemic - WAMR 2019 Vol. 13, No. 1
Maria Eugenia Ramirez is a Partner with the law firm of Hogan Lovells US LLP in Miami, Florida, and is a member of the firm’s International Arbitration Practice Area.
Ivan Bracho González is an Associate with the law firm of Hogan Lovells US LLP in Miami, Florida, and is a member of the firm’s International Arbitration Practice Area.
States are expected to take swift action in times of national emergencies. The measures taken, however, might not be perfectly tailored nor designed to equally affect all individuals residing in a particular state, and could have the potential consequence of disproportionately impacting foreign investors. Currently, as the entire world faces a pandemic of unprecedented proportions, a myriad of state actions is warranted—and perhaps even necessary—to safeguard the life and wellbeing of virtually all humans. These necessary state actions will inevitably affect national and foreign investors, albeit perhaps to a different extent.
Against this backdrop, foreign investors affected by state-imposed measures may need to be compensated. This compensation, in turn, will depend on the circumstances surrounding the events leading up to the states’ measures. Currently, it is unclear whether governments will focus their resources on compensating foreign investors affected by their in-extremis actions instead of turning their attention to reshaping their economies and making the health of their citizens a priority. This scenario, of course, presents both a legal and ethical dilemma, which emerges when trying to weigh the states’ obligations not to, for instance, expropriate a foreign investor’s property without compensation against the states’ responsibilities towards their own citizens manifested in the obligation to adopt measures to combat COVID-19.