China and the pandemic: litigate or legislate?

Robert A. Cornetta, BridgeTower Media Newswires

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.

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 again? Measures seeking to bring China into the mainstream of responsibility for a sovereign of its size and power would be a step toward that goal.

Opinion writer Liz Peek has offered up a four-point plan that is worthy of discussion and that could have just such an effect where litigation would not.

First, the free flow of information and ideas is a concept that China must be convinced to embrace. Blocking internet information, cracking down on dissidents, and censoring public speech, opinion and a free press are all maladies that contributed to the lack of real-time COVID-19 information coming from Wuhan early on as the disease was gaining strength. Had this information been allowed to freely circulate, timely assistance would certainly have arrived from around the world to contain the disease, thereby avoiding the pandemic. Strong international policy must encourage this change now.

Second, the aggrieved parties (the United States and other nations) must reverse the trend of setting up China as a sole source of important products such as pharmaceutical and medical supplies. Critical manufacturing must be brought back home, and China’s aggressive procurement of other nations’ properties and companies in a quest for monopoly must be controlled. Businesses that have promoted this offshore policy for profit must be educated about its hidden costs and encouraged to curtail it by trade and tax policy.

Third, campaigns of disinformation coming from China must either cease or be countered by an aggressive public relations effort by the United States and other world governments to bring facts and real-time data to the Chinese population. Democracies must communicate and advance facts and candor in order to show that they too can be trusted. This is the reason why discussion about unilaterally cancelling debt held by China is not a viable option.

Fourth, stepped-up efforts must be made to protect intellectual property that is being purloined from international businesses and universities. Once again, it is a matter of leveling the playing field by the exercise of policy, not litigation.

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. Massive damage actions cannot deliver the change necessary to prevent another pandemic. Efforts are best directed toward the roots of the problem, and that is best addressed by policy initiatives, not litigation.

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Retired Judge Robert A. Cornetta practices at Cornetta Babine in Danvers.