How ‘Healthy’ are Investment Treaties of South Asian Countries: An Empirical Study of Public Health Provisions in South Asian Countries’ BITs and FTA Investment Chapters
ICSID Review - Foreign Investment Law Journal (2018); DOI: 10.1093/icsidreview/siy004
39 Pages Posted: 26 Jul 2017 Last revised: 19 Aug 2018
Date Written: July 15, 2017
The South Asian region while holding a prominent position in terms of attracting FDIs, conspicuously been infrequent on the radar of international investment law (IIL) scholarship. In the rapidly shifting plane of international investment law considering the recent backlash against the ISDS system, South Asian countries are certainly set to play decisive role if not immediately, in due time in shaping the future contours of international investment law. This paper is an attempt to contribute to the ever-growing body of IIL scholarship from the perspective South Asian countries. These countries, while simultaneously being preferred as the favourite investment destination by the foreign investors, are also marred by abysmal public health scenario. In light of the increasing interface between the IIL and public health as evidenced by the Philip Morris cases and the Eli Lily case, this paper undertakes an empirical study of the public health related provisions present in the BITs and the FTA investment chapters of the South Asian countries, in order to access the regulatory latitude that these countries would have in event any public health related measure is challenged under the ISDS. The paper concludes by finding that the number of the public health related provision in the BITs of the South Asian countries is considerably low as a consequence of which they might be left to rely on a shaky ground of the doctrine of police powers, and accordingly suggests that the South Asian countries should incorporate substantive health related provision in their BITs.
Keywords: BITs, ISDS, South Asia, Public Health, India, Bangladesh, Pakistan, Sri Lanka
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