States of Emergency: The Role of Necessity and Force Majeure in Investor-State Dispute Settlement

Author

Elif Kapisiz

ISBN: 9789403551609

Published: October 2026

Format: Hardback

Language: English

Publisher: Kluwer Law International

Description

Economic crises, armed conflict, pandemics, sanctions regimes, and climate-related emergencies have all tested the limits of States' obligations toward foreign investors. This volume is the first book-length examination of the two doctrines States most often rely on to justify emergency measures in investor-State dispute settlement: necessity and force majeure.

It reviews arbitral practice across economic crises, armed conflict, pandemics, and climate emergencies, and compares treaty exceptions, customary international law, and contractual force majeure clauses side by side. Dedicated chapters examine the burden of proof and evidentiary standards tribunals apply to emergency defences, draw a comparison with how necessity and force majeure function in commercial arbitration, and set out drafting strategies for sanctions, geopolitical disruption, and future emergencies in State and State-owned entity contracts.

The book is directed at investment arbitration practitioners, counsel for States and investors, and academic and research law libraries building collections on investor-State dispute settlement and public international law.

Key Features

• Comprehensive review of arbitral practice on necessity and force majeure across economic crises, armed conflict, pandemics, and climate-related emergencies
• Side-by-side comparison of treaty exceptions, customary international law doctrine, and contractual force majeure clauses
• Practical guidance on burden of proof and evidentiary standards for emergency defences, directly usable when drafting pleadings or awards
• Dedicated chapter on drafting strategies for sanctions, geopolitical disruption, and future emergencies in State and State-owned entity contracts
• Critical examination of the Global North–South divide in how emergency defences are applied and perceived in practice

Coverage

Legal framework; the necessity defence in ISDS; force majeure in ISDS; burden of proof and evidentiary standards in emergency defences; comparative analysis with commercial arbitration; force majeure and hardship in State and State-owned entity contracts; thematic analysis; reflections and proposals.

About the Authors

Elif Kapisiz writes on investor-State dispute settlement, with a focus on how arbitral tribunals have treated State emergency measures across economic, security, and public-health crises.

Table of Contents

Introduction. Chapter 1: Legal Framework. Chapter 2: The Necessity Defence in ISDS. Chapter 3: Force Majeure in ISDS. Chapter 4: Burden of Proof and Evidentiary Standards in Emergency Defences. Chapter 5: Comparative Analysis with Commercial Arbitration. Chapter 6: Force Majeure and Hardship in State and State Owned Entity Contracts. Chapter 7: Thematic Analysis. Chapter 8: Reflections and Proposals. Conclusion. Bibliography. Table of Cases and Arbitral Awards. Table of Treaties. Index.

Why buy this book?

As sanctions regimes, armed conflict, and climate-related disruption increasingly surface in investment treaty claims, tribunals and counsel need a single reference that maps how necessity and force majeure actually function in ISDS — not only in treaty text, but in arbitral practice. This is the first book to bring that practice together in one volume.

Keywords

necessity defence investor-state arbitration, force majeure ISDS, investment arbitration emergency defences, sanctions investment treaty claims, economic crisis investor-state dispute, Global North South investment law, burden of proof investment arbitration, state of emergency international investment law

Target Audience

Investment arbitration practitioners, counsel for States and investors in treaty disputes, investment risk advisors, academic and research law libraries, international law scholars

Genre

Investment Law, International Investment Law, Arbitration and Alternative Dispute Resolution, International Arbitration

Q&A

Q: What is the necessity defence in investor-state arbitration?
A: It is a doctrine allowing a State to justify measures that would otherwise breach investment obligations when those measures were the only way to safeguard an essential State interest against grave and imminent peril.

Q: How does force majeure apply differently in investment treaty disputes versus commercial contracts?
A: In ISDS, force majeure interacts with treaty standards and customary international law rather than purely contractual terms, which changes both the threshold for the defence and the evidentiary standards tribunals apply.

Q: How are sanctions and geopolitical disruption analyzed as emergency defences in ISDS?
A: The book devotes a dedicated chapter to drafting strategies and arbitral treatment of sanctions-related and geopolitical disruption claims, drawing on recent practice.

Q: What burden of proof applies when a state invokes an emergency defence in investment arbitration?
A: Tribunals generally place the burden on the State to establish each element of necessity or force majeure, and the book sets out the evidentiary standards arbitral practice has applied to that burden.

Q: Where can I buy States of Emergency: The Role of Necessity and Force Majeure in Investor-State Dispute Settlement?
A: This title is available now from CLNZ Books, with worldwide shipping included and institutional ordering options via our Request a Quote page.

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