Kingsfield partners Alexander H. E. Morawa, SJD, and Chang Wang co-presented a CLE webinar titled “Who is going to pay for it? The Pandemic Indemnity Claims under Public International Law and U.S. Law” at the University of Minnesota China Center on June 18 at noon CST.
The economic damage caused by the COVID-19 pandemic is mounting across the world. The U.S. economy has been impacted by the pandemic with unprecedented speed and severity.
In recent months, some U.S. and European government officials have expressed the desire to seek damages from China, where the coronavirus outbreak presumably originated. The states of Missouri and Mississippi have already filed lawsuits in the U.S. federal courts, alleging China did not do enough to stop the deadly outbreak. In addition, some small business owners and medical professionals have filed class-action lawsuits against China. Republican senators from Missouri, Tennessee, and Arizona are proposing legislation to create ad hoc exceptions to foreign sovereign immunity – the key hurdle for those legal cases to proceed.
This webinar discussed possible liability – or legal consequences more broadly – under public international law (PIL) and U.S. law for pandemic-related action or inaction. Are there standards and principles in PIL that could provide guidance regarding such claims? What types of claims are possible, and who might have ‘international jurisdiction’ to entertain them? Would the defendant states have to submit to them? How likely is it that there would be a ‘judicial’ or otherwise ‘independent and impartial’ determination under PIL, instead of a geopolitical standoff? Could, and should, damages be assessed and enforced? Are national (U.S.) courts the proper forum for such a determination, even if there would be enabling legislation? What would be the international response to a national award of damages? And ultimately: should there be a permanent international dispute settlement and compensation process for matters involving international liability beyond the fragmented mechanisms currently available?
These questions are, of course, profoundly political in nature. Whatever the legal answers may be, the liability claims have already reminded many Chinese of “the century of humiliation” and the Unequal Treaties: in particular, the Boxer Protocol signed between the Qing Empire of China and the Eight-Nation Alliance in 1901.