Protecting Foreign Investment and Public Health Through Arbitral Balancing and Treaty Design

Development summary

Freya Baetens’s article, published in the International and Comparative Law Quarterly, examines the relationship between host States’ obligations under investment agreements and their regulatory powers in public health. It states that tribunals ruling on the merits of health measures have shown considerable deference to States under existing treaties, while newer treaties expressly address health considerations through the right to regulate, general exceptions, or article-specific carve-outs; it also notes that GATT-modelled exceptions may be difficult to invoke because of the necessity threshold.