Global Health Governance at a Crossroads: Trademark Protection v. Tobacco Control in International Investment Law
Posted: 13 Sep 2012
Date Written: March 12, 2012
According to the World Health Organization, tobacco consumption causes the death of five million people each year. Countries have increasingly adopted regulations aimed at diffusing public awareness and have massively adhered to the World Health Organization Framework Convention on Tobacco Control, which has established a cognitive and normative consensus for promoting global public health through tobacco control. Despite these successful approaches, the tobacco business has been facilitated by foreign investment protection, which has increased competition and lowered tobacco prices. By extensively protecting investor's rights to promote foreign direct investment and to foster economic development, international investment governance risks undermining the fundamental goals of tobacco control. This article investigates the relationship between international investment law and tobacco regulation. As investment agreements broadly define the notion of investment, tension exists when a State adopts tobacco control measures interfering with foreign investments, as regulation may be considered tantamount to expropriation under investment rules. In addition, investment treaties provide foreign investors with direct access to investment arbitration. Thus, foreign investors can directly challenge national measures aimed at protecting public health and can seek compensation for the impact on their business of such regulation. As a result, the mere threat of an investor-state dispute may have a chilling effect on policy-makers. Several questions arise in this context.
Are investment treaties compatible with states' obligations to protect public health? Is investor-state arbitration a suitable forum to protect public interests? Are there any limits to the power of states to enact public health regulations? In the light of parallel developments before other international law fora, this article critically assesses the clash between public health law and international investment law before investment treaty tribunals and offers a systematic and updated analysis of the recent case law. The article then concludes with some policy options that may help policy makers and adjudicators reconcile the different interests at stake.
Keywords: Tobacco control, international investment law, investment treaty arbitration, public health
JEL Classification: K32, K33
Suggested Citation: Suggested Citation