Crisis, Continuity, and Change in International Investment Law and Arbitration

Abstract

The dialectic between continuity and change lies at the heart of international law, which seeks to foster peaceful, just, and prosperous relations among nations. International law endeavors to govern the future by applying, in the present, norms that are inherited from the past. Nonetheless, everything flows and in an ever-changing world, some change is needed within the international legal system to ensure its stability especially in time of crisis. Not only can crises constitute means for the development of international law, but they can test, undermine or ultimately buttress the structure of international law. This article explores the connection between crisis, continuity, and change in international investment law and arbitration. It seeks to answer the following question: can international investment law successfully address the challenges posed by the coronavirus crisis? Or will the pandemic change the field of international investment law as we know it? After briefly discussing a range of procedural matters, the article focuses on substantive aspects, namely, the kinds of claims that can be filed, the kind of defences that can be raised, and how arbitral tribunals can adjudicate such matters. In this way, the article ultimately concludes that both continuity and change are necessary for ensuring the health and wealth of nations and justice among them.