Mednarodna odgovornost držav za posege v tuje investicije v času izrednih razmer za zaščito javnega zdravja

slovenian

2021

volume 57, issue 1/2

foreign investments   international investment arbitral tribunals   international investment law   international responsibility of states

Univerza v Ljubljani, Pravna fakulteta

The authors discuss legal institutes available under international investment law and general customary international law to states seeking to justify legality of their measures adopted in times of emergency situations in procedures before international investment tribunals. They offer a pertinent analysis of applicability of relevant institutes in a situation in which a state's measures to address the COVID-19 pandemic result in an adverse consequence for the investor. They conclude that the array of defences available to states is relatively limited. International investment treaties contain two relevant types of applicable clauses, i.e. the general exceptions and the compensation-for-losses clauses, while under customary international law, states may rely on circumstances precluding wrongfulness (e.g. necessity, distress, force majeure), but only with limited prospects of success. The arbitral practice that hitherto dealt with these institutes is relatively inconsistent and the absence of clear guidelines on the permissible state action in emergency situations results in the lack of stability of the legal environment.

12.11.2024