Editor's Note: The Second Seminar of the International Commercial Expert Committee of the Supreme People's Court and Appointment of New Members of the International Commercial Expert Committee was held successfully on December 8, 2020. The theme of this seminar is the Latest Developments of International Commercial Dispute Resolution Mechanism and the Research on Relevant Issues on International Law. The participants, on site or virtually, had discussions on the two topics, the Development of International Commercial Dispute Resolution Mechanism: New Situation and New Challenges and the Research and Application of International Law Related Issues in the Post-Pandemic Era, respectively. The texts of speeches delivered by the participants would be posted on the CICC's website. 

The Evolving International Law Issues: in the Post-Pandemic Era

Maidan Suleimenov

Chairman of the Kazakhstani International Arbitrage,

Member of the International Board of the Supreme Court of the Republic of Kazakhstan

Dear president：

Dear participants of the seminar：

First, I would like to thank you sincerely for the great honor given to me to become an expert in such a representative institution. I will try to justify your high trust.

Kazakhstan, as well as other countries in the world, suffered from the COVID-19 pandemic. Many people were infected and died. From March to June 2020, according to the decree of the President of the Republic of Kazakhstan, a state of emergency was declared. Now, Kazakhstan is experiencing the second wave of coronavirus.

Kazakhstan, like other countries, is concerned about the world’s development after the pandemic. Law-workers of Kazakhstan also try to make their contribution, trying to reveal problems that may arise in law, especially in international law.

World after the Pandemic

Most articles of law concerning the post-pandemic era focus on areas such as strengthening nationalism and weakening globalization, weakening liberalism, accelerating the decline of American power, new global polarization and further advancement of China’s position, the increasing number of failed governments, low oil and energy prices, and huge losses for oil-producing countries along with shale oil producers, growth and strengthening of the remote labour market, and online shopping.

From November 11 to 13, 2020, the Third Paris Peace Forum was held, which was the first international event dedicated to building a better world after the COVID-19 pandemic. The forum concentrates on projects and initiatives from around the world aimed at responding to the COVID-19 crisis and improving collective sustainability.

Among the 100 selected projects, 46 of them mentioned urgent response to the health, social and economic crisis, as well as the three priorities of the Paris Peace Forum this year:

· Improving global health management;

· Use and regulation of digital tools and platforms developed to overcome the crisis;

· Support of civil society and economic activities during the pandemic.

Some experts subscribe to the point that the pandemic will result in de-globalization. The pandemic has demonstrated the unreliability of the current global value chains. Self-sufficiency becomes a defining concept for governments in many countries. As a result, investment into national economies is likely to be redistributed.

At the same time, the existence of a global problem is capable of not only isolating states, but also of raising globalization to a new stage. One of the brightest figures in the 20th century law theory Karl Schmitt considered that" the unification of all humanity into one political nation (world government) is impossible just because it has no single external enemy." However, the virus becomes such an “ideal enemy” for all human beings. Proposals for the establishment of a "world government" are emerging.

International Law

In my opinion, the main problems that we will face after the pandemic in the field of international law include:

1. International Cooperation

COVID-19 showed shortcomings in the legal regulation and structure of Infectious Disease Management. It is necessary to review WHO’s duty and ensure its cooperation with other international organizations (such as the International Monetary Fund, the World Bank, the Office of the United Nations High Commissioner for Refugees, the Office of the High Commissioner for Human Rights).

The idea of adopting a new universal treaty to combat the global emergency is formulated.

2. Human Rights

The main lesson of the pandemic is how to define and maintain a balance between individual human rights and the demands of society to the state, such as how to ensure a safe environment for everyone.

Human Rights restrictions must be made on the basis of the rule of law, openness and transparency, and the restrictions must certainly be necessary, proportionate and scientifically-based. The implementation cannot be discriminatory and unlimited in time. Respect for human dignity and respect for human rights should be ensured.

3. International Investment Law

It is expected that, after the pandemic, some of the measures taken by states in response to COVID-19 could be challenged in investment arbitration (for example, India’s measures to restrict the export of pharmaceutical ingredients). The grounds for such a dispute may be different violations, including the following standards for dealing with investors:

· Fair and equal treatment;

· Full Protection and security;

· Inadmissible expropriation without compensation;

· Obligations arising from the umbrella reserve;

· National treatment;

· Most-favored-nation-treatment.

In turn, states may refer to various exceptions from investor protection standards to justify their actions. Such exceptions may be attributed to the introduction of measures within the so-called "police powers" of the state. In addition, judging the alleged violation of the standard of fair and equal treatment, tribunals may subscribe to the point that the state has margin of appreciation about the measures to be taken in response to the pandemic.

4. International Trade Law

The basic articles of the market economy no longer work. The main assumption of Ludwig Wilhelm Erhard that only the market is the most democratic judge is overturned by life. The state begins to intervene directly in the activities of private companies. To what extent do laws of free market economy correspond to the spirit of time?

The pandemic became the first test with which the market economy was definitely not able to cope.

Should the state subsequently restrict its participation in various market sectors, or has the pandemic become a suitable excuse for the transition of the developed economies to a new level?

In the field of trade law, as anywhere, digital technology will be developed. Instead of written contracts, it is likely that smart contracts and online purchases will come, crypto-currency will get further development and will make a tough competition in cash.

Due to time limit, I cannot explain other related problems.

Thank you for your attention.

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*The original text is Chinese and has been translated into English for reference only. If there is any inconsistency or ambiguity between the Chinese version and the English version, the Chinese version shall prevail.