Restrictions on Foreign Investment during COVID-19

Due to the rapid spread of the coronavirus pandemic, many governments are taking measures aimed at maintaining & stabilizing the situation in their countries. However, if you intend to invest in Europe, you should keep in mind that such measures can sometimes damage the interests of investors.

What Does it Mean?

Governments around the world are continuing to put in place measures aimed at slowing down the spread of COVID-19 pandemic. However, it is important to understand that these requirements impede economic activity & may even have some negative consequences.

To protect public health, the governments may:

• introduce restrictions on the movement of their population;
• close down enterprises;
• control prices;
• limit exports;
• provide assistance to small & medium-sized businesses.

If you are a foreign investor who’s considering investing in a country where emergency measures have been recently taken, your business is likely to encounter difficulties. For example, some countries, such as Germany & France, have tightened their foreign investment regime. Therefore, before registering a company in Europe, you should first study the question of regulating investment activity in the EU.

BITs

According to international law, the host state bears certain obligations to the foreign investor. If a BIT is signed between the host jurisdiction and your country, these responsibilities will be clearly stated & described. The terms and conditions of the BIT may differ, but the purpose of such agreements remains the same, i.e. facilitate & stimulate investment.

If you intend to start a business in Europe, Asia or other jurisdictions, please note that in accordance with BITs, each host state is required to:

• provide full & immediate compensation to investors if the measures taken have led to the expropriation of investments;
• ensure fair & impartial treatment of the investor and their business both from the point of view of commercial markets & the legal system;
• allow the repatriation of capital and profits without interference.

It is important to make sure that a BIT covers any form of economic activity carried out by a company registered in Europe or any other jurisdictions.

Resolving Financial Disputes

If you have reasons to believe that the host state has violated its obligations under the BIT, you may be entitled to redress. You can also file an arbitration claim in Europe or file a lawsuit through the appropriate forum. The host state is likely to argue that its measures were justified by the need to respond to an emergency, so the ICSID or another tribunal will need to consider these measures and how they have affected your investment. If the arbitral tribunal decides in your favor, you can apply the arbitral award in accordance with the NY Convention.