The Legal Issues of the Conflict between Fair and Equitable Treatment Standard and Public Health Policy of Tobacco Control in International Investment Dispute
Date Issued
2015
Date
2015
Author(s)
Lo, Mao-wei
Abstract
Since the WHO Framework Convention on Tobacco Control (“FCTC”) entered into force in 2005, tobacco industries have constantly been concerned with active tobacco control measures adopted by contracting parties, and have thus initiated legal challenges against their implementations, including WTO and investor-state arbitration. Among their claims, Fair and Equitable Treatment (“FET”) is the most beneficial substantive right for investors. FET constitutes as a prominent provision in most international investment treaties. Despite its importance and wide discussion in the literature, how to ensure that a foreign investor’s legitimate expectations would be afforded with “fair” and “equitable” treatment in the face of a host state’s changing regulatory system or governmental measures, is a long-term unsettled issue. This is partly attributed to the fact that most BITs only contain general provisions on FET. The consequence is that investment tribunals are left ample room to interpret FET clauses on their own, which increases the legal uncertainty for investors and host states. Therefore, how to deal such conflict and tension between investors’ protection under FET clauses and the host State’s right to regulate under an international investment agreement is consequently important. In author’s point of view, tobacco control is a human right protection issue, and is quite different from tobacco industry’s investment interests under international investment agreement. The author believes that the value of right to health should overrides tobacco property/investment right since the former is the fundamental human right, without health, other kinds of human right cannot fully realize. To help clarify the correct interpretation and application of FET clauses when faced with host States’ tobacco control measures under the WHO FCTC, this thesis tries to provide systematic approaches to prevent the host state’s right to protect public health from been unduly interfered by tobacco industries. Such approaches in this thesis could be divided into two parts: The first is by means of the “interpretation approach”; namely to suggest arbitral tribunal to utilize certain legal instruments to address such conflict and tension. However, due to some restraints for current legal instruments, this thesis would further argue that the most overhauling proposal is by means of “legislative approach”. This thesis analyzes these approaches, and argues that they may properly prioritize the public health interest of host states, and ultimately reach the goal of pursuing all peoples of the highest possible level of health.
Subjects
FCTC
Tobacco Control
Tobacco Industry
International Health Law
International Investment law
International Investment Agreement
Fair and Equitable Treatment
Investor-State Arbitration
Right to Regulate
Right to Health
SDGs
Type
thesis
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