Nguyễn Thị Lan Hương

Lausanne University PhD Candidate; Lecturer of International Law Faculty, Ho Chi Minh City University of Law.

Trần Thị Thuận Giang

LLM., Lecturer of International Law Faculty, Ho Chi Minh City University of Law.

Ngô Nguyễn Thảo Vy

LLM., Lecturer of International Law Faculty, Ho Chi Minh City University of Law.

Abstract:

The global emergence and rapid spread of SARs-Covi-2 virus coupled with the serious devastation to human health has triggered many countries over the world to take series of measures for public health and national security protection. These measures, from the perspective of international investment law, may be considered as expropriation of the foreign investor's assets if such measures seriously affect the investment and thus impose the host State adequate compensation liability. In this context, the police power doctrine can be invoked to prevent the claim for compensation from the investors, which is developed and adopted  in new generation free trade agreements to which Vietnam is a member such as CP-TPP and EVFTA. However, whether this doctrine can be applied when considering a measure taken by a state to control the pandemic is subject to the specific provisions of the investment protection agreement and their interpretation. 

This article discusses the issue of protecting public health nested in the public interests to apply the police power doctrine in the context of international investment, as countries have become increasingly attentive in preserving policy space to ensure their regulatory right, especially in the context of the Covid-19 pandemic. The paper will also evaluate the importance of this doctrine in the practice of negotiating international investment agreements, especially those to which Vietnam is a signatory, in order to encourage countries to reassess development policy and strategy to achieve sustainable development goals.

Keywords: COVID-19, CPTPP, EVFTA, police power, public health protection, international investment.