The objective of this 1 credit course is to introduce students to the relationship between international laws governing foreign investment and efforts to protect and promote human health. The course will examine the extent to which bilateral investment treaties (BITs) and investment chapters in trade agreements limit domestic regulatory autonomy in the field of public health. International investment law is comprised of over 2500 BITs, which govern the acceptance and treatment of foreign investment. BITs impose various rules limiting the freedom of domestic policy-makers, including rules governing national treatment, most-favoured-nation treatment (principles of non-discrimination), so-called fair and equitable treatment and expropriation of property rights. These rules are increasingly being used by foreign investors, including trans-national corporations, to challenge domestic regulations such as public health measures. For example, a major tobacco company recently filed arbitration claims challenging tobacco packaging regulations introduced by health authorities in Australia and Uruguay.
The course will address:
- the theoretical perspectives underlying the international law of investment and the concept of police powers (particularly the power to protect health);
- the different types of legal tests used to determine the regulatory legitimacy of a measure as well as the impact of varying standards of proof on analysis of this type;
- rules governing expropriation of property rights and the circumstances in which health and environmental health measures might be considered equivalent to expropriation;
- rules governing fair and equitable treatment as used in determining the legitimacy of domestic regulatory measures;
- rules governing non-discrimination and their potential impact on domestic health measures that are non-discriminatory in form;
- rules governing arbitrary or discriminatory measures; and
- procedural issues relating to the participation of civil society in the negotiation of investment treaties and the settlement of investment disputes.