By: Kate Brown de Vejar | Kiera S. GansCharlotte Westbrook

We recently published two articles examining the potential for investment claims arising out of measures taken by States in response to the coronavirus disease 2019 (COVID-19) pandemic. The first (COVID-19 – a legitimate basis for investment claims?) looked at whether such measures could provide a legitimate basis for claims under bilateral investment treaties (BITs) or other investment protection agreements. The second (State defenses to investment claims arising from COVID-19) addressed some of the key defenses available to States under customary international law. In this article, the third in our series, we focus on whether measures taken by States in response to the pandemic could provide a basis for claims under the North American Free Trade Agreement (NAFTA),[1] identify some of the specific defenses that may be available to the State parties to NAFTA, and outline key factors that investors are urged to take into account when deciding whether to bring claims under NAFTA or its successor instrument, the Agreement between the United States of America, the United Mexican States, and Canada (USMCA).[2]

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If you have any questions regarding these issues and their implications, please contact the authors or your DLA Piper relationship attorney.

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This information does not, and is not intended to, constitute legal advice. All information, content, and materials are for general informational purposes only. No reader should act, or refrain from acting, with respect to any particular legal matter on the basis of this information without first seeking legal advice from counsel in the relevant jurisdiction.

[1]  North American Trade Agreement Free Trade Agreement, dated 1 January 1994.

2]  Agreement between the United States of America, the United Mexican States, and Canada, signed on 13 December 2019 (not yet in force).