Public health clauses in international investment agreements: Sword or shield?
| Published date | 01 May 2023 |
| Author | Anne Marie Thow,Wolfgang Alschner,Faisal Aljunied |
| Date | 01 May 2023 |
| DOI | http://doi.org/10.1111/1758-5899.13199 |
260
|
Global Policy. 2023;14:260–269.wileyonlinelibrary.com/journal/gpol
2 | THE INTERFACE BETWEEN
INVESTMENT TREATIES AND
PUBLIC HEALTH POLICY
International Investment Agreements (IIAs) form part of
government efforts to attract and protect foreig n invest-
ment through the creation of a stable policy environm ent
(Bonnitcha et al.,2 017). The over 2500 IIAs currently
active are intended to contribute to national economic
policy objectives, including ec onomic growth, the de-
velopment of new industries and employment growth.
However, IIAs also impact other policy fields from en-
vironmental protection to climate change adaptation to
public health.
On the one hand, IIAs are increasingly perceived as
a threat to domestic policy autonomy and states' regula-
tion to achieve public interest objectives (Spears 2010).
IIAs grant foreign investors greater rights than those
afforded to domestic businesses, a nd these rights are
supported by recourse to international dispute set-
tlement mechanisms (Bonnitcha et al.,2 017). Some
of the 1104 Investor- State Dispute Settlement (ISDS)
claims launched under IIAs until 2020 (UNCTAD,2020)
have targeted sensitive general public policy legislatio n
such as tobacco control laws mandating plain c igarette
packaging (Voon & Mitchell, 2016). Althoug h only a
minority of all ISDS claims have been successful, and
none regarding tobacco, some comment ators assert
that the mere risk of such claims that could result in
multi- million dollar awards in favour of the foreign inves-
tor can contribute to regulatory chill, a situation in whi ch
governments hesitate to adopt a certain regulation
due to a perceived risk of dispute (Moehlecke, 2019 ;
Schram et al.,2018).
On the other hand, IIAs can play a role in channel-
ling and regulating foreign investment. Foreign direct
RESEARCH ARTICLE
Public health clauses in international investment
agreements: Sword or shield?
Anne MarieThow1 | WolfgangAlschner2 | FaisalAljunied3
Received: 19 July 202 2
|
Revised: 27 Februa ry 2023
|
Accepted: 28 Febr uary 2023
DO I: 10 .1111/17 58- 589 9.13 199
This is an open ac cess article under t he terms of the Creative Commons Attribution License, which permits use, distribution and reproduction in any medium,
provided the original work is properly cited.
© 2023 The Authors . Global Policy published by Durham Universi ty and John Wiley & Sons Ltd.
1Menzies Centre for H ealth Policy and
Economics, S ydney School of Public
Health, The Unive rsity of Sydney, Sydney,
New South Wales, Australia
2Faculty of Law, Comm on Law Section,
University of O ttawa, Ottawa, Onta rio,
Canada
3Independent R esearcher, Singapore,
Singapore
Correspondence
Anne Marie Thow, Me nzies Centre for
Health Policy an d Economics, Sydney
School of Publi c Health, The Universit y of
Sydney, Level 2, Charles Per kins Centre
(D17), Sydney, New South Wales, 2006 ,
Australia.
Email: annemarie.thow@sydney.edu.au
Funding information
Social Sciences and Humanities
Research Coun cil of Canada (SSHRC);
National Health and Medical Research
Council (NHMR C, Australia), Grant/Award
Number: 2012233
Abstract
The interaction of international investment agreements and public health is
marked by ambivalence. Investment treaties can help attract investment into
the health sector but also enable international legal claims by foreign investors
against public health measures. This paper seeks to bet ter understand their re-
lationship by systematically mapping the purpose of health inclusions in bilateral
investment treaties (BITs) between 1959 and 2021. We find that health- related
clauses, present in 18% of all BITs, are used both as a shield and a sword. Most
health mentions protect host countries from c laims against public health meas-
ures, yet an increasing number of recent BITs, primarily from developing coun-
tries, also pursue an offensive public health agen da by advancing health safety
at work and health- related corporate social responsibility of investors.
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