Indirect Expropriation in the Context of the Pandemic: Confronting Investment Treaty Provisions with COVID-Related Regulatory Measures

Niccolò Zugliani

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Chapter 9 Indirect Expropriation in the Context of the Pandemic: Confronting Investment Treaty Provisions with COVID-Related Regulatory Measures

In: International Investment Law and the Pandemic

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Niccolò Zugliani

Niccolò Zugliani
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Type:: Chapter

Pages:: 159–174

DOI:: https://doi.org/10.1163/9789004711204_011

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Abstract

The health-related emergency responses that states have enacted during the COVID-19 pandemic have the potential to run afoul of the favourable treatment to foreign direct investment (FDI) provided by international investment agreements (IIAs). Among the substantive grounds of FDI protection whose breach might be raised in connection with such measures is the protection from indirect expropriation through general regulations, also defined as regulatory expropriation. This chapter investigates the legal issues that emerge when general, health-related regulations are tested against indirect expropriation provisions in IIAs. It does so by summarizing the main tenets of the protection from indirect expropriation, especially with regard to the adoption of general regulatory measures, developed in the case law of investment arbitral tribunals in the silence of old-generation IIAs. It then addresses how new-generation provisions on indirect expropriation that safeguard the state’s regulatory space might reconcile the state’s regulatory needs with the protection of FDI from indirect expropriation. Finally, it elaborates on the application of the police powers doctrine in the context of COVID-related regulatory measures.

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International Investment Law and the Pandemic

Series: Nijhoff International Investment Law Series, Volume: 26

E-Book ISBN:: 9789004711204

Publisher:: Brill | Nijhoff

Print Publication Date:: 01 Nov 2024

Subjects
- International Law
  - International Dispute Resolution & Arbitration
  - International Commercial, Trade & Investment Law

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Chapter 9 Indirect Expropriation in the Context of the Pandemic: Confronting Investment Treaty Provisions with COVID-Related Regulatory Measures

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International Investment Law and the Pandemic

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