Ngo Nguyen Thao Vy

Lecturer, International law faculty, HCM City University of Law

Nguyen Xuan My Hien

Lecturer, International law faculty, HCM City University of Law

Abstract

Due to the global-scale impact of the pandemic COVID-19, the investors have witnessed an increasing trend of the adoption of national emergencies by the host State to fight against the crisis in various sectors. Currently, the investment protection system in the newly-emerged Free Trade Agreement (FTA)- The Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) strives to shift the equilibrium of public interests and the investor’s rights into a more balanced position in both procedural and substantive aspects, some legal provisions regarding the scope of the State’s right to regulate within its police powers in certain “necessary” situations are deemed to be too vague to ensure the basis for a State's emergency measure. Here poses the question amidst the context of a pandemic that whether the investment provisions in such FTA are effective legal defense for host States to deal with arbitration claims brought by foreign investors. Hence, the paper analyses the nature of and legal consequences from the host state’s emergency measures adopted during the COVID-19 pandemic under the international investment law, to assess and propose potential shields under CPTPP against arbitration claims for host States in such a controversial context.

Keywords: new-generation FTA, CPTPP, emergency measures, COVID- 19 pandemic, legal defenses, legitimate public welfare objectives, public power.