International Economic Law

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Justified Border Closures do not violate the International Health Regulations 2005

Rapidly developing pandemics require governments to use their best endeavours to protect their populations.  International law permits them to do this provided they observe certain conditions, but limits on the reach of the World Health Organization (WHO) International Health Regulations 2005 (IHR) have previously been insufficiently appreciated. In mid-February 2020 The Lancet published a piece by 16 health professionals taking the view that countries were breaching the IHR in closing their borders to travellers from locations including China, the source country of COVID-19, contrary to WHO advice.  A similar view was published in Science in March.  That conclusion cannot be correct.  Article 43 of the IHR clearly leaves room for action going beyond that recommended by the WHO, consistent with respect for States’ sovereign rights (IHR Art 3.4), in appropriate circumstances.  Parallels with the World Trade Organisation Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) reinforce this point, as seen below.  Formal clarification of the matter could potentially take place in connection with the review of the IHR’s functioning as…

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COVID-19 and ‘War’ Clauses in Investment Treaties: A Breach through the Wall of State Sovereignty?

In the fog of COVID-19, lawyers are identifying ways to hold States accountable for the outbreak, indecision and/or actions, whether or not violating due diligence obligations. States have adopted different measures, with varying success and degree of intrusiveness: from lockdowns over export restrictions and requisitions, to stimulus legislation and even infection tracking. As with…

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Changing global dynamics and international competition law: Considering China’s potential impact: A rejoinder to Professor Fox

I am honoured and grateful that Professor Fox has engaged with and responded in such a thoughtful manner to the various issues that I raised in my article ( "Changing Global Dynamics and International Competition Law: Considering China’s Potential Impact") published in the latest issue of EJIL (Vol. 30 (2019) No. 4).  Even though our views…

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Adamakopoulos and Others v. Cyprus: Mass Claims Between No Longer and Not Yet

Introduction Unlike previous decisions dealing with mass claims in investment treaty arbitration, the Decision on Jurisdiction and Admissibility of 7 February 2020 in Theodoros Adamakopoulos and others v. Republic of Cyprus, ICSID Case No. ARB/15/49 (hereinafter ‘Decision’), has not attracted much attention. The majority (Donald M. McRae and Alejandro Escobar) accepted…

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Export restrictions under scrutiny – the legal dimensions of export restrictions on personal protective equipment

 “A crisis without borders cannot be resolved by putting barriers between us. And yet, this is exactly the first reflex that many European countries had. This simply makes no sense. Because there is not one single Member State that can meet its own needs when it comes to vital medical supplies and equipment. Not one.”…

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