How Can States Use Exceptions in Treaties to Defend Tobacco Control Legislation?
Transnational Dispute Management, Vol. 9, Issue 5, 2012
17 Pages Posted: 30 Nov 2012
Date Written: November 5, 2012
In this article Ostřanský examines the nature of exception clauses to International Investment Agreements (‘IIAs’) and concludes that public health justifications for tobacco control measures potentially fall within a number of available exceptions. He cautions against arbitral tribunals encroaching too far on States’ policy choices in the light of scientific uncertainty, democratic legitimacy and community proximity. The structure of the paper is as follows: in Part I, the general elements and characteristics of exception clauses in IIAs are introduced and an explanation is given as to how these differ from customary international law circumstances precluding wrongfulness. This part also explains the scope and effect of a successful invocation of both of these clauses. Part II focuses on the process of asserting exceptions and on standards of arbitral review applicable to the invocation of various exceptions that are susceptible to be used in the tobacco control context. At this point, the relevance of scientific evidence and the World Health Organization Framework Convention on Tobacco Control (‘WHO FCTC’)1 will be addressed. Finally, in Part III Ostřanský briefly discusses the possibility of invoking the police powers doctrine.
Keywords: investment arbitration, investment protection, investment disputes, treaty exceptions, standards of review, Framework Convention on Tobacco Control, tobacco control
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