Public Health in International Investment Law and Arbitration

Abstract

International investment law, and the settlement of investor-state disputes through ad hoc arbitration, is often seen as a threat or limitation on the ability of states to enact measures for the protection of public health. This chapter begins by outlining the coverage of international investment agreements and how the obligations they impose may be relevant to range of public health measures. A number of high-profile arbitrations have impacted on policies that are relevant to public health, including challenges to tobacco control measures or regulations on the use of hazardous chemicals, and cases concerning patents or marketing authorisations for pharmaceuticals. Recent treaty drafting practice reflects concern that international investment law may limit state regulatory autonomy, with many contemporary investment treaties including clauses that clarify that legitimate public health regulations are not inconsistent with investor protections. Arbitrations concerning the consistency of public health measures with international investment agreements have also had to grapple with the complex relationship of international investment law to other regimes of public international law, including instruments of the World Health Organization, treaties regulating hazardous substances and treaties concerning the protection of intellectual property rights.

Keywords: Foreign Investment; Public Health; Regulatory Autonomy; Tobacco; Pharmaceuticals