This new research project within GCILS aims to identify, map, and analyse developments in litigation that are emerging in response to government measures taken to combat the coronavirus pandemic.
The British Government is already facing legal challenges contesting the legality of the lockdown measures that it has taken in response to the ongoing global health crisis. Simon Dolan, CEO of Jota Aviation, has hired a legal team to mount an action for judicial review of the Government’s policies arguing that the lockdown in the UK was ‘both legally defective and disproportionate in law’.[i] While much of the ‘action’ and focus has been on actions by domestic actors, there is a need to understand the international law obligations of governments and to what extent measures are compliant with these.
Governments may be restricted in their suite of potential measures by these international law obligations and may find some of their measures are vulnerable to challenge. Hogan Lovells, an American-British law firm, has produced a ‘global guide’ to ‘governmental, regulatory, and other legal responses’ to the coronavirus pandemic.[ii] The guide offers the firm’s clients an analysis of the legal issues arising with government restrictions and their ‘impacts on transactions and trading’. More concretely, the ‘topic matrix’ produced by Hogan Lovells references impacts on international arbitration, trade restrictions, and litigation.[iii]
Governments around the world have adopted policies that have direct implications under international trade law, such as directing manufacturers to reorient production towards the manufacture of medical equipment and subsidising the production of medical supplies. States including Germany, Australia, the US, and South Africa imposed export restrictions on PPE (personal protective equipment) at the height of outbreaks in Spring 2020. A number of these measures prima facie seem to conflict with a fundamental principle of WTO law, articulated in GATT Article XI(1), that explicitly prohibits the imposition of quantitative restrictions on international trade that are imposed through measures such as quotas, and import or export license. Similarly, in the field of international investment law, law firm Jones Day has suggested that ‘sovereign measures in response to COVID-19 may violate foreign investment protections contained in international investment agreements (“IIAs”) if they are discriminatory or disproportionate.’[iv]
The question of how to reconcile and adjudicate between the competing requirements of ensuring public health and safety, protecting individual liberties, promoting economic recovery, and respecting existing legal commitments will be an ongoing dilemma for the UK government and for other states worldwide. A wide body of actors – government officials, legal advisors, human rights organisations, and NGOS – will benefit from further clarity concerning the UK’s position in this legal milieu.
With an initial focus on the UK’s position under International Economic Law, the research team will study current and future legal challenges that arise in response to the measures taken by the UK government to address the threat posed by Covid-19. The team will build on its body of expertise in these legal areas in order to identify relevant precedents that may speak to the UK’s currently legal position. Researchers will produce two policy briefs that disseminate findings to interested stakeholders.
The Litigating Corona Project is funded by a COSS Impact Acceleration Account (IAA) grant.
PI – Dr Anna Chadwick, Lecturer in International Law and Legal Theory
- law and markets
- financialisation in the global economy
- international law and food
Co-I – Professor Christian Tams, Chair in International Law
- law of treaties
- State responsibility
- dispute settlement
- investment law
Co-I – Dr Akbar Rasulov, Senior Lecturer in Public International Law
- international law and global governance
- economic governance
- world trade law
- global value chains
Research Assistant – Gail Lythgoe
- international law and governance
- international organisations
- global health law
Resources and News Items
- “IIL Policy Brief: “COVID-19 Measures and Investment Protection: Should Governments Be Afraid of Investor Claims?”, Anna Chadwick, Gail Lythgoe, Akbar Rasulov & Christian Tams, September 2021
- WTO notified measures related to COVID-19
- UN Economic Commission for Africa ‘Covid-19 and Export Restrictions: the Limits of International Trade Law and Lessons for the AfCFTA’
- United Nations Conference on Trade and Development (UNCTAD) ‘Investment Policy Responses to the Covid-19 Pandemic’
Hogan Lovells ‘Covid-19: A Global Guide – Topic Matrix’
- ‘BA, easyJet and Ryanair begin court action over UK quarantine rules’ The Guardian
- ‘UK faces legal action over northern pub closures’ Financial Times
- ‘Global firms expected to sue UK for coronavirus losses’ The Observer
[i] https://www.theguardian.com/law/2020/may/01/uk-government-faces-legal-challenge-coronavirus-lockdown-businessman-simon-dolan ;
[ii] Hogan Lovells, ‘COVID-19: A global guide Global governmental, regulatory, and other legal responses to the coronavirus pandemic’ (22ND May 2020) https://www.hoganlovells.com/en/publications/covid19-a-global-guide
[iii] Hogan Lovells, ‘Covid-19: A Global Guide – Topic Matrix’ https://www.engage.hoganlovells.com/knowledgeservices/attachment_dw.action?attkey=FRbANEucS95NMLRN47z%2BeeOgEFCt8EGQJsWJiCH2WAW0O2InMqv88V%2FBfSnexwrc&fromContentView=1&nav=FRbANEucS95NMLRN47z%2BeeOgEFCt8EGQuf6KjHLHOBw%3D&attdocparam=pB7HEsg%2FZ312Bk8OIuOIH1c%2BY4beLEAeyYSXNlq1704%3D
[iv] Jones Day, ‘COVID-19 and Investment Treaties: Balancing the Protection of Public Health and Economic Interests’ (May 2020) https://www.jonesday.com/en/insights/2020/05/covid19-and-investment-treaties