Public health has long lain at the heart of state sovereignty, as state has been traditionally conceived as guardian or trustee of the public good. In recent years, because of globalization and the increasing awareness of the fact that public health issues are of international concern, such a state prerogative has been reaffirmed by a series of international law instruments. However, while public health is a core element of state sovereignty, economic globalization has posed tremendous challenges to public health policy. The increase in global trade and foreign direct investment (FDI) have determined the creation of legally binding and highly effective regimes that demand states to promote and facilitate trade and FDI. In particular international investment law has developed with a growing number of bilateral investment treaties (BITs) being signed in the last two decades. While public health concerns are rarely specifically mentioned in BITs, a number of recent arbitrations have shown the increased interaction between economic integration and public health.
As a wide variety of state regulations allegedly aimed to protect public health may interfere with foreign investments, a potential tension exists between the public health policies of the host state and investment treaty provisions. Conflicts of these norms have arisen in practice and in some circumstances problems have arisen in relation to the manner of reconciling investor rights and public health. This book focuses on the 'clash of cultures' between international investment law and public health, critically analysing the emerging case law of investment treaty arbitration. The book considers the theoretical interplay between public health and investor rights in international investment law, asking questions such as is international investment law a suitable legal framework for reconciling the different interests at stake, and is investment treaty arbitration a suitable forum for disputes involving elements of public health? The book also explores the interplay between investment law and public health in practice, focusing on specific sectors such as pharmaceutical patents, tobacco regulation and environmental health.
It then goes on to analyze the available means for promoting consideration of public health in international investment law and suggests new methods and approaches to better reconcile public health and investor rights.