Reshaping Investor-State Dispute Settlement Before the Next Syndemic

Abstract

In the midst of a legitimacy crisis in investor-State dispute settlement regime, COVID-19 syndemic may lead States to the perfect storm as a result of the enlargement of the national policy space in order to tackle health, social and economic impacts. Thus, this piece aims to identify measures adopted by Latin American States which may be challenged by foreign investors’ claims. It also addresses the protection of national policy space and argues that the roadmap for reshaping the regime should include the following options: 1) moratorium on pending disputes and restriction on future claims related to Covid-19 measures;2) introduction of counterclaims as a general rule; 3) reference to right to regulate in investment agreements; 4) exclusion of protected areas or policies.