Our co-blogger Bryan Mercurio published an excellent policy brief at the World Health Organization (WHO) Bulletin. (“International investment agreements and public health: neutralizing a threat through treaty drafting”)
This is his conclusion:
“International investment agreements need not pose a threat to legitimate health measures. The addition of limitation clauses such as those being negotiated into the most recent IIAs provide an additional hurdle for the claimant and more comfort for countries taking measures to protect and promote public health. With appropriate drafting, provisions can be negotiated into future IIAs to effectively neutralize the threat to public health.”
He also views that:
“[A]rbitration tribunals can draw upon the rich jurisprudence of the WTO in interpreting the equivalent exception clauses in its agreements. The bar can be high, but at least this clause is recognition that life and health can trump substantive IIA obligations.”
However, what if investment arbitrators (most of whom are commercial arbitrators) ever misinterpret or misapply the WTO case law? In this regard, Bryan makes this observation:
“[A]rbitration tribunals that may or may not have expertise in WTO law and jurisprudence will now be called upon to interpret whether a host state’s measure is consistent with TRIPS.”
So, would investment arbitrators be now motivated to learn the relevant WTO case law related to the National Treatment principle as well as the General Exception clause, among others?