Cashing in on the pandemic: how lawyers are preparing to sue states over COVID-19 response measures
As governments take action to fight the COVID-19 pandemic and prevent economic collapse big law firms, too, are watching the virus. Yet, their concern is not to save lives or the economy. Instead the lawyers urge big business to challenge emergency measures in order to defend its profits. In a parallel corporate justice system called ISDS states could face multi-million dollar lawsuits.
On 26 March 2020, Italy’s coronavirus death toll surpassed 8,000 – then over twice the number seen anywhere else in the world. Morgues were overflowing with coffins and hospitals had long stopped accepting any non-emergency patients as doctors were fighting to save lives. “I have never seen anything like this,” one of them told a reporter. “You think everything is fine. Then, when it gets into the lungs, it convinces the body to fight so much, we end up killing our own bodies.”
On the same day, lawyers of Italian law firm ArbLit published an article entitled “Could COVID-19 emergency measures give rise to investment claims? First reflections from Italy”. Instead of worrying about Italy’s record coronavirus death toll, the lawyers pondered whether the Italian government’s “hastily drawn-up and ill-coordinated” measures to curb the spread of the virus and lessen its economic impact, “may well fall within the scope of... investment treaties... between Italy and other states, paving the way for damages claims brought by foreign investors against Italy.”
When the emergency is over, states will... have to face arbitration claims brought by foreign investors under any applicable bilateral investment treaty.
A parallel justice system for the rich
Globally, thousands of trade and investment agreements give sweeping powers to foreign investors, including the peculiar privilege to sue states in an arbitration court system known by the acronym ISDS (investor-state dispute settlement). In ISDS tribunals companies can claim dizzying sums in compensation for government actions that have allegedly damaged their investments, either directly through expropriation or indirectly through regulations of virtually any kind. The number of ISDS suits has skyrocketed in the last decade, and so has the amount of money involved.
In recent years, the ISDS regime has come under heavy criticism from legal scholars, trade unions, environmentalists, consumers and other civil society groups. They have lambasted it as a parallel justice system for the rich, which grants more favourable treatment to some of the wealthiest actors in society than anyone else. ISDS allows foreign investors – and foreign investors alone – to bypass courts and get public money in compensation, which would not be available for them in domestic legal systems. One reason is that tribunals can award damages for companies’ lost expected future profits, which are not compensable under most other legal regimes; another is the lack of balance of investors’ rights with other societal interests; yet another is the lack of rules that limit the power of the tribunals so that they do not unduly interfere with democratic decision-making (see, for example, this statement by 202 US law and economics Professors and this one by 101 European Professors). Domestic firms, citizens and communities have no access to ISDS.
Preparing a pandemic litigation wave
In the midst of a crisis like no other, the legal industry is preparing the ground for costly ISDS suits against government actions that address the health and economic impacts of the coronavirus pandemic. In written alerts and webinars law firms point their multinational clients to investment agreements’ vast protections for foreign investors as a tool to “seek relief and/or compensation for any losses resulting from State measures” (blog post by lawyers of Quinn Emanuel).
It seems clear... that the current crisis will give rise to investment treaty claims.
As law firm Ropes & Gray put it in an alert: “Governments have responded to COVID-19 with a panoply of measures, including travel restrictions, limitations on business operations, and tax benefits. Notwithstanding their legitimacy, these measures can negatively impact businesses by reducing profitability, delaying operations or being excluded from government benefits... For companies with foreign investments, investment agreements could be a powerful tool to recover or prevent loss resulting from COVID-19 related government actions.”
As ISDS disputes “often follow economic, financial, or other crisis” (lawyers of Debevoise & Plimpton in a webinar), some lawyers are predicting a substantial “wave of disputes that will arise in response to the COVID-19 pandemic” (webinar announcement by Alston & Bird). With legal costs for ISDS disputes averaging around US$5 million per party while having exceeded US$30 million in some cases, a boom in claims would mean big business for the law firms.
It happened before, it will happen again
The lawyers’ enthusiasm is not based in fantasy. In the past 25 years over 1,000 known investor-state lawsuits have been filed. As a Reed Smith lawyer points out “many of those disputes arose out of difficult societal circumstances such as the Argentine financial crisis in the early 2000s or the Arab Spring in the early 2010s”. Investors have won a significant amount of ISDS claims as arbitral tribunals ruled that it was illegal to interfere with prices of essential goods, restrict or tax the export of vital products, roll back incentives to investments – and the list goes on. Once more “these and other types of measures taken in response to the COVID-19 pandemic could attract arbitration claims for State responsibility under investment treaties,” argues the Reed Smith practitioner.
As states struggle with the pandemic and with rebuilding their economies, ISDS cases could mean huge extra financial burden. “Recoverable damages (and corresponding exposure for governments) can be massive,” write lawyers of Sidley in an insight on “investment treaty claims for COVID-19 losses”. They explain: “Where a company prevails in its investment treaty claims, it may be able to recover all the losses that flowed from the government measures that damaged the company. This may extend beyond the amounts initially invested (actual cost) to going concern value, including lost future profits.” Compensation for lost hypothetical future profits is one reason why ISDS awards can go into the tens of billions and can be much more lucrative than domestic court rulings.
Perversely, these potential lawsuits and the financial compensation they seek will only add to the already immense financial burden on many States.
Incalculable risks for states
As lawyers encourage all kinds of shareholders to consider COVID-related ISDS claims against states, the latter face an incalculable risk and a potentially large number of claims. To quote lawyers of arbitration boutique Volterra Fietta: “The directors of companies should also inform their shareholders that the shareholders might have investor-State arbitration claims in their own right, separate from the company. As noted above, any entity in the corporate chain of ownership might have rights to investor-State arbitration claims.”
In light of this risk, experts have called for a permanent restriction on ISDS claims against government measures targeting the health, economic and social effects of the COVID-19 pandemic. The United Nations Conference on Trade and Development (UNCTAD), too, is sounding alarm bells: “State measures to limit the adverse... impact of the pandemic are manifold and vary from one country to another,” UNCTAD wrote on 4 May 2020 and warned: “Although these measures are taken for the protection of the public interest and to mitigate the negative impact of the pandemic... some of them could... expose governments to arbitration proceedings initiated by foreign investors.”
While no actual coronavirus-related ISDS cases are known yet, specialised investment lawyers are considering numerous case scenarios. An analysis of recent legal briefings and webinars reveals a wide range of government actions, put in place to respond to the coronavirus, that could be challenged in future arbitrations accordingly. Here are ten particularly heinous litigation scenarios developed by some of the busiest law firms in the field of international investment arbitration.
Scenario 1: ISDS claims against government action to provide clean water for hand-washing
Hand-washing is one of the basic protective measures against the spread of the coronavirus. But it requires access to clean water, which can be a challenge for poor households. Hence El Salvador decided that COVID-19 plagued families will not have to pay water bills for several months. Similarly, Bolivia suspended water service disconnections due to lack of payment during the crisis.
World Bank officials have applauded these acts to provide safe water to citizens. But corporate law firms are less amused. “Utility companies, many of which are foreign-owned with investor rights, have... seen their revenue streams eliminated,” criticised Hogan Lovells in a client alert. The firm argued that such government responses to the health crisis “may encourage foreign investors to seek recourse under protections found in investment treaties.”
Foreign investors need to be aware that states do not have free reign to disregard their investment treaty obligations, notwithstanding the severity of the crisis faced.
In the midst of the crisis, investment lawyers also advise corporate clients to use the threat of ISDS claims as a powerful lobbying tool to keep prices for their products high. As lawyers of arbitration boutique Volterra Vietta explain in an alert for their corporate clients: “Companies should be aware of the potential value of their investor-State arbitration claims whenever they are negotiating with States or State entities. Investor-State arbitration claims (or the threat thereof) can be a useful lever in such negotiations. This is especially true if negotiations concern the re-negotiation of tariff rates or other economic aspects of a contract with a State entity.”
Scenario 2: Challenging relief for overburdened public health systems
To relieve overrun public hospitals and following public outcry over half-empty private ones refusing to admit COVID-19 patients, in March Spain’s Ministry of Health temporarily took control over private hospitals. Ireland, too, is using private hospitals as part of the public sector during the crisis. The Health Minister declared: “We must of course have equality of treatment, patients with this virus will be treated for free, and they’ll be treated as part of a single, national hospital service.”
But the threat of investment arbitrations against the public management of private hospitals looms large. According to lawyers of Quinn Emanuel, “investors in the healthcare industry could... have indirect expropriation claims if turning over control was involuntary.” The firm adds: “If the State does not return control after the end of the outbreak or if the State’s control left permanent harm to the investment, investors could also have a claim for indirect expropriation.” Investment treaties typically protect not only against direct expropriations (eg the taking of land) but also against indirect ones (eg when there is no direct taking but the state takes effective control of property).
Lawyers have also set their sight on other attempts to prop up overburdened public health systems. The requisitioning of hotels (to turn them into hospitals) and protective masks as well as compelling companies to produce medical supplies (like General Motors being ordered to produce ventilators) are criticised by many law firms. “If the seizure of a private production lines to produce medical equipment... lasts for a sufficiently long period of time without adequate compensation, investors could have a claim for unlawful indirect expropriation” (Quinn Emanuel lawyers).
Even if governments have provided cost-covering compensation or indemnities, this might not be enough under international investment law, which require states to pay “prompt, adequate and effective” compensation, independently of the public purpose of an expropriation. As “national laws do not necessarily provide for the same compensation that would be due under foreign investment law” (Alston & Bird lawyer at minute 8’55 in this webinar recording), corporations could walk away with more money than they would ever receive in national or European court proceedings.
National laws do not necessarily provide for the same compensation that would be due under foreign investment law.
Alex Yanos of Alston & Bird law firm
Scenario 3: Lawsuits against action for affordable drugs, tests and vaccines
The fate of millions of people rests on the discovery and mass production of low-priced medicines, vaccines and tests for COVID-19. To facilitate their development, production and supply states are trying to make it easier to bypass pharmaceutical and device patents, which can stand in the way. One key tool are compulsory licences allowing others than the patent holder to produce and supply a product. Israel has already issued such a license (for the import of an HIV drug, which could help coronavirus patients), Canada and Germany have made compulsory licensing easier and resolutions with the same goal have been passed in Chile and Ecuador (for an overview see here). Doctors Without Borders, too, has called for “no patents or profiteering on drugs, tests, or vaccines used for the COVID-19 pandemic” and on governments “to suspend and override patents and take other measures, such as price controls, to ensure availability, reduce prices and save more lives.”
Investment arbitration lawyers, however, consider “governments... forcing producers to sell drugs at significantly discounted prices and/ or taking the intellectual property for themselves and/or disseminating that intellectual property to third parties without permission” as “takings” by governments that could lead to expropriation claims under investment treaties (Alston & Bird lawyer at minute 27’48 in this webinar recording). “Imposing a cap on prices” for medical supplies, too, is identified as a target of coronavirus-related claims by foreign investors as they “may dramatically decrease sales revenues even for in-demand products” (law firm Hogan Lovells).
Scenario 4: Investor attacks on government restrictions for virus-spreading business activities
In April 2020, Peru’s Congress temporarily suspended the collection of highway tolls. The aim of the bill was to contain the spread of the corona virus, protect the employees collecting the tolls from exposure and ease the transport of food and other essential goods. A similar measure had been taken by India in March, but has already been ended as part of the country’s lockdown relaxations.
Several investment law firms have referred to the Peruvian case arguing that “a foreign investment that suffers losses due to restrictions on business operations could have a claim against the host government for its losses” (Ropes & Gray). “Have the restrictions destroyed the value of the investment or prevented the company from controlling its foreign investment?... Are the restrictions proportionate to the risk?”, asked Ropes & Gray lawyers in a client alert entitled “COVID-19 Measures: Leveraging Investment Agreements to Protect Foreign Investments” and added that responses to such questions “may indicate a violation of an investment agreement.”
In a webinar on 29 April 2020, an Alston & Bird lawyer, too, questioned the proportionality and necessity of Peru’s action. He asserted that the government could have taken other, less harmful measures to protect public health such as introducing technological alternatives to in-person toll collection or paying the toll collectors for their losses (minute 49’20 in the webinar recording).
Asked about how countries should handle conflicting obligations towards the health of their citizens and foreign investors that same lawyer answered: “It’s gonna be very difficult for states... States will have to try to comply with both and be conscious to the fact that some tribunals will be unforgiving later on if their conduct runs afoul of their obligations under (an investment) treaty... I definitely think that some states will end up losing cases to investors – notwithstanding the way that it might come across as unfair” (minute 59’20 in the webinar recording).
Some states will end up losing cases to investors – notwithstanding the way that it might come across as unfair.
Scenario 5: ISDS suits against rent reductions and suspended energy bills for those in need
As whole households fall ill with COVID-19 and/ or are stripped of income because of job losses, politicians are considering relief for the payment of rent and bills. “I’m getting a lot of people who are pretty desperate and say they are not going to get beyond the next week”, a concerned MP of the UK Labour party told journalists in March, calling on the government to suspend utility bills to “halt some of the burdens”. In Spain, suppliers of water, gas and electricity have been banned from cutting supply if households cannot pay their bills. In France and other countries where some tenants can no longer pay pre-crisis rents, calls for mandatory rent reductions are becoming louder.
Investment lawyers are watching these debates with potential compensation claims by real estate and utility companies in mind. Referring to possible rent forgiveness in France and suspensions for energy bill payments in the UK Shearman and Sterling criticised: “While helping debtors, these measures would inevitably impact creditors by causing loss of income.” The law firm went on: “Measures ostensibly taken to deal with a serious problem but otherwise disproportionately affecting certain businesses... may be inconsistent with international law... If suspension of payments to utility companies leads to bankruptcy, the question will arise whether the State considered appropriate financial assistance to address the suspension.”
Our International Arbitration team has a vast experience in international investment law and arbitration, and stands ready to advise States and investors alike in relation to the government measures that have been or will be adopted in the context of the COVID-19 pandemic.
In other words: states could lose ISDS cases over rent relief and suspended utility bills if tribunals find that the costs of these acts were ‘disproportionately’ shouldered by landlords and utilities registered overseas and the government did not do enough to support them.
Scenario 6: Disputes over debt relief for households and businesses
Several governments have adopted regulatory measures that aim to soften the economic blow of the Corona crisis on individuals, households and businesses so that they can keep their homes and stores and avoid bankruptcy. Examples include suspensions on mortgage payments (for example, in Italy and Spain) and creditor protections (for example, in Germany) as well as moratoria on bankruptcy proceedings (for example, in Belgium).
Such measures could “give rise to indirect de facto expropriation claims” by creditors, which, during the measure, will have few powers to enforce their debts and payments against the affected debtors, argue lawyers of Italian law firm ArbLit. They add: “the investor might also allege that its access-to-justice right has been breached by the moratorium on bankruptcy proceedings”. Drawing on “past experience with the international disputes arising out (of) economic and financial crises”, law firm Dechert, too, considers regulations such as suspended creditor protections as “sufficiently harmful to financial sector investors so as to give rise to investment disputes”.
Scenario 7: Legal action against financial crises measures
As governments suspended much economic activity in an effort to slow the spread of the virus, the world economy has witnessed heavy losses and is facing a looming new debt crisis, particularly in the Global South. To respond to the financial meltdown economists and international institutions are advocating capital controls (to curtail the massive, destabilising outflow of money) as well as a massive relief and restructuring of public debt, amongst other measures.
But such emergency measures could be challenged in ISDS tribunals, the law firm Dechert argues in a briefing entitled “COVID-19 Economic Crisis: Protecting International Banking and Finance Investors”. The firm has compiled a long list of acts, which countries like Argentina and Greece have adopted in response to past crises and which have later on been challenged in ISDS proceedings: the restructuring or default of sovereign debt, prohibitions on transferring funds and other capital controls to stabilise the financial sector, bank bailouts and bail-ins etc. “As seen from past investment disputes,” Dechert states, “economic and financial crises are the most common cause of governmental actions adverse to investors in the banking and finance sector.”
When the actions of a government – even if nominally well-intentioned – cause injury to a foreign investor or its investment, international investment law provides protection as well as effective means of recourse against the State.
The firm is aware that “domestic recourse against (such) emergency measures... will be highly restricted, with courts unwilling to second guess the political branches of governments and the regulatory decisions of central banks and financial regulators”. One reason for this is that domestic law balances the rights of foreign investors with other societal interests. Another explanation is the fact that domestic courts leave wide discretion to governments and Parliaments in dealing with complex and urgent policy questions. ISDS, however, lacks these general doctrines of deference and balancing, which is why it is so attractive to corporations and their lawyers.
Scenario 8: Tax justice on trial
Many countries have adopted tax relief measures to support citizens and businesses with the challenges caused by the pandemic. Yet at one point governments might raise taxes to handle the dramatic budget deficits caused by increased public spending and the economic fallout from the pandemic. In this situation, calls for greater tax justice are gaining traction. In the UK, the US and India, for example, experts have proposed taxes on wealth and the super-rich, arguing that “those on the highest incomes, and those with wealth, are the only people who could afford to pick up… (the coronavirus crisis) bill.” Denmark, Poland and France have already banned companies registered in tax havens from accessing COVID-19 aid, a move that was welcomed by tax justice campaigners.
Sovereign measures in response to COVID-19 may violate foreign investment protections contained in international investment agreements ("IIAs") if they are discriminatory or disproportionate.
Additional taxes and fairer tax deals, however, could come under fire in investment arbitrations. “In the future, governments will likely be more aggressive in enforcing tax laws generally in order to fund economic stimulus packages related to COVID-19,” warns Ropes & Gray. The law firm raises a number of questions, which “could indicate an investment agreement violation”, for example: “Are additional taxes being imposed that significantly reduce the value of the foreign investment?” and “Did the government guarantee the investor a specific tax rate or tax treatment that has since been revoked?” Another of the firm’s questions (“Are foreign investors or investments excluded from tax benefits or other economic relief?”) raises the spectre of potential ISDS disputes over the ‘discriminatory’ French, Danish and Polish bans for COVID-19 grants to tax haven companies.
Despite frequent “tax carve-outs” in investment treaties, a growing number of ISDS cases has already challenged government tax decisions – from the withdrawal of previously granted tax breaks to multinationals to increased corporate, income and other taxes.
Scenario 9: Suing governments for not preventing social unrest
As Coronavirus lock-down restrictions are taking their toll in poor neighbourhoods and countries, commentators predict a rise in social unrest. A Bloomberg columnist wrote in April 2020: “This pandemic will lead to social revolutions... Behind the doors of quarantined households, in the lengthening lines of soup kitchens, in prisons and slums and refugee camps – wherever people were hungry, sick and worried even before the outbreak – tragedy and trauma are building up. One way or another, these pressures will erupt.”
Arbitration lawyers are already advising their multinational clients on how to defend profits in potential situation of Corona-related social turmoil. “If social unrest results in the looting of businesses, foreign investors might claim that the State has breached its obligation to provide full protection and security,” argues legal boutique Voltera Fietta. CMS law firm, too, suggests that states’ obligation to provide full protection and security to foreign investors “may assume greater relevance during the COVID-19 crisis, as inaction or reduced vigilance by States... may result in significant harm being cause to foreign investments”, particularly as “the COVID-19 crisis increases the risk of looting, especially in areas of reduced patrolling by the police or military.”
An ISDS ruling against Egypt from 2017 illustrates the types of scenarios that the investment lawyers have in mind. In this case, the tribunal sided with US investor Ampal-American, which had sued Egypt over a series of alleged interventions with a gas pipeline. Amongst other violations, the arbitrators found that Egypt had breached the full protection and security standard in the US-Egypt investment deal by not providing enough police protection to the pipeline, which suffered from sabotage attacks by militant groups in the wake of the Arab Spring. While the tribunal acknowledged the “difficult” circumstances at the time – when “armed militant groups took advantage of the political instability, security deterioration and general lawlessness” – it claimed that Egyptian authorities failed “to take any steps to stop saboteurs from damaging” the pipeline.
Legal scholars have criticised the ruling as “crazy” and completely ignorant of the “complex security conditions” during the Arab Spring. The case could nonetheless act as a precedent for similarly crazy rulings in future pandemic related ISDS cases.
Scenario 10: Booming business for litigation funders
Arbitration law firms are not the only ones betting on a deluge of disputes in the wake of COVID-19. Commercial litigation funders also hope to profit from the coming boom. These funders buy into ISDS claims, covering (parts of) the investor’s legal costs in the hopes of sharing in the spoils if a payout is awarded. Typically, a funder will take between 20 and 50 per cent of the final award.
For arbitration and litigation funders, the past few weeks may mark the beginning of a boom.
As new providers have entered the litigation funding market in the recent decade and existing funders have more money available, third-party funding of ISDS claims is likely to add to an additional spur to claims. As Freshfields, the world’s busiest law firm in ISDS disputes, predicts: “The increased availability of funding will provide much-needed ammunition to cash-strapped litigants, thereby fueling the waves of litigation or arbitration following on the heels of the pandemic... This may contribute to more litigious plaintiffs and a generally more active disputes landscape than in the aftermath of the 2008 crash.”
A lawyer of Holman Fenwick Willan – HFW law firm adds: “Having access to third-party funding allows claimants to not only de-risk litigation, but also to completely remove the legal fees from their balance sheets. That will prove extremely attractive to many companies at the moment, and could mean that we start seeing COVID-19-related claims coming through sooner than they might otherwise.” Put differently: ISDS claims could hit states faster than imagined – and they could come with zero financial risk for the claimant investors.
Arguments to circumvent possible state defences
States will not be completely defenceless when hit by ISDS lawsuits over the measures they took in response to the COVID-19 pandemic. They can either justify their actions by drawing on public interest exceptions in the applicable investment treaty or on established emergency practices in international law. Both options, however, have their limits.
The first option is more theoretical than of practical relevance. Ninety per cent of the investment deals in force today, are so called old generation agreements with hardly any public interest exceptions, so providing little leverage for states. This is why, as DLA Piper concludes, “States commonly have little in the way of defences or exceptions that are spelled out in the treaties”.
Notwithstanding the fact that COVID-19 presents an unprecedented and fast-developing challenge, the guarantees given to foreign investors under IIAs remain relevant to an assessment of state action in response to the pandemic.
Regarding the option of state defences under customary international law, investment lawyers draw on the many ISDS rulings against Argentina to come up with counter arguments for investors in the COVID-19 context. For the defence to hold, for example, states will need to show that the measures they took were the only way to deal with the harm caused by the pandemic. But as lawyers of Aceris Law have pointed out: “It can always be debated as to whether particular acts taken by States are the only means to safeguard an important interest, as the very different reactions of States to confront the COVID-19 pandemic in fact illustrate.” In addition, states will need to show that they did not contribute to the emergency situation of the pandemic. Yet, investors could argue “that some States contributed to the crisis through lack of preparation for a foreseeable event” (Reed Smith) or that “States’ under-funding or under-resourcing of health care systems is a substantial contributing factor” of how hard the pandemic hit them (20 Essex lawyer). While this might well be the case should an ISDS case then be used to rub salt in the wound of a depleted health system?
Get out of the treaties before it is too late
While the global public is following the Corona crisis fearing the decimation of whole continents, investment lawyers sound like “We knows it’s awful, but still, we should crack on with plundering public coffers through ISDS”.
At a time when a global health crisis is compounded by a major economic crisis, the need to avoid ISDS claims has never been greater. This is why experts have called for a permanent restriction on such challenges to government measures targeting the health, economic and social effects of the COVID-19 pandemic – and for an immediate moratorium on ISDS lawsuits more generally. There is already a draft proposal for an agreement to suspend ISDS claims for COVID-19 related matters.
Another option is for countries to get out of existing ISDS deals. South Africa, Indonesia, India and many others have terminated some of their bilateral investment treaties. Just recently, 23 EU member states signed a treaty that will terminate some 130 bilateral treaties among them. Italy has departed from the Energy Charter Treaty which is basically a large ISDS deal for the energy sector. There are also proposals for how ISDS could be ended globally, in a less piecemeal approach. And clearly, states should not enter into any new ISDS deals, let alone a world court for corporations, a kind of ISDS for the entire globe.
The need to avoid investor-state claims has never been greater.
In a recent blog about COVID-19 and international investment law, legal scholars raised two key questions: “What is the justification for maintaining a legal enclave where the wealthiest economic actors become entitled to a more favourable treatment than the other segments of society that suffer disproportionately as a result of the pandemic and the responses to it? Why do the grievances of investors vis-à-vis states and their expectations of continued profit levels deserve more robust protection than the obligation to ensure an adequate standard of living to the broader population?”
These questions get to the heart of the matter. There is no place for a parallel justice system for corporations. ISDS has to go.
Check out this podcast episode on the research produced by TNI.