Public Health in International Investment Law and Arbitration

Handbook of International Investment Law and Policy (Springer), Forthcoming

22 Pages Posted: 17 Jun 2019

See all articles by Elizabeth Sheargold

Elizabeth Sheargold

University of Wollongong

Andrew D. Mitchell

University of Melbourne - Law School

Date Written: June 5, 2019

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

Suggested Citation

Sheargold, Elizabeth and Mitchell, Andrew D., Public Health in International Investment Law and Arbitration (June 5, 2019). Handbook of International Investment Law and Policy (Springer), Forthcoming. Available at SSRN: https://ssrn.com/abstract=3399749

Elizabeth Sheargold

University of Wollongong ( email )

Northfields Avenue
Wollongong, New South Wales 2522
Australia

Andrew D. Mitchell (Contact Author)

University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia
+61383441098 (Phone)
+61393472392 (Fax)

HOME PAGE: http://www.law.unimelb.edu.au/staff/Andrew%20Mitchell

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