China and the pandemic: litigate or legislate?


Byline: Robert A. Cornetta

While America and the rest of the world continue to cope with the health and safety impacts of the coronavirus, a collateral and potentially more perilous issue is beginning to percolate.

By a significant margin of opinion at home and among a growing number of governments across the globe, policymakers and the public are expressing their ire over what they believe is China's liability for the COVID-19 pandemic. Public opinion has also begun to gather around issues of redress and recovery of damages from China.


The discussion that is taking place right now over the best ways to collect damages from China is too simplistic and ultimately it cannot succeed.


Fueling this debate are reports emanating from Wuhan, the capital of Hubei Province, that point to a breach of safety occurring at a research lab there that allowed the virus to escape and then begin its lightning-speed maturity into a pandemic.

Information has also made its way into public discussion that the government of China failed to warn, failed to act, and indeed embarked upon a course of disinformation designed to understate and cover up the true magnitude of the crisis.

Suggestions for recovery (think sanctions) of these enormous monetary claims have included federal lawsuits (already initiated by at least one zealous state attorney general), federal statutory and procedural rule changes aimed at overcoming sovereign immunity, and World Court damages actions.

Presumably, judgments obtained via these legal actions against the government of China and its citizens would then be levied upon their assets located in the United States and elsewhere.

Even more strident measures have been proffered that would unilaterally cancel debt held by China and owed by businesses and governments. However, how to calculate the measure of damages under that scenario has yet to be defined.

While such legal redress certainly demonstrates the number and novelty of remedies that might be brought to bear in this situation, it cannot solve the overarching fact that should China exercise its sovereignty in defense of litigation or simply ignore it, for all intents and purposes pursuit of such claims comes to an end. Worse yet, China might decide to retaliate in ways that would heighten international tensions.

So, how does a world aggrieved by the actions of China in causing this pandemic respond effectively in seeking to prevent such a catastrophe from happening...

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