PROTECTING FOREIGN INVESTMENT AND PUBLIC HEALTH THROUGH ARBITRAL BALANCING AND TREATY DESIGN

Abstract This article analyses the fraught relationship between host States’ obligations under investment agreements and their regulatory powers in field of public health. First, tribunals addressing merits health measures have exercised considerable deference to States existing treaties. Second, recent generation treaties spells out considerations encourage respondents or adopt broad interpretations right regulate, general exceptions, article-specific carve-outs. Clauses modelled on GATT exceptions may prove difficult invoke due ‘necessity’ threshold. Finally, Kyoto Protocol serve as a model incentivising private sector.