A Procedural Win for Public Health Measures

Internalisation of International Investment Agreements in Public Policymaking: Developing a Conceptual Framework of Regulatory Chill

“…The other three studies used expert opinion to examine the potential of arbitral awards in three cases to influence future regulatory chill. Hepburn and Nottage for example commented on the recent outcome of the Philip Morris v Australia case (Hepburn and Nottage, ). They suggested that even though Philip Morris’ claims were dismissed on jurisdictional grounds, providing no guidance on the substantive validity of tobacco plain packaging measures for other states, recent successes on tobacco plain packaging measures in Australia and Uruguay, combined with, in their opinion, increasingly pro‐state outcomes in arbitration more generally, would mean that any further delay of such measures by other states would have little to do with fears of ISDS.…”

“…Alternatively, the internalisation of IIAs in the decision‐making process may produce a regulatory chill response as highlighted in a number of the analyses of policy responses. Anecdotal accounts were provided about Guatemala abandoning the closure of a mine after ISDS threats, despite negative social and environmental impacts on the surrounding region and its indigenous populations (Pérez‐Rocha, 2017); about the EU abandoning regulation of endocrine‐disrupting chemicals in pesticides linked to cancer and male infertility following pressure from US trade negotiators and business interests (Siles‐Brügge and Butler, ); and about the government of New Zealand delaying tobacco plain packaging policy while it waited for an award to be made in the Philip Morris v Australia case (Hepburn and Nottage, ; Shekhar, ). Likewise, case study evidence supported conclusions that the government of Ghana abandoned mining bans following a threat of arbitration by Canadian and American companies (Mander and Perkins, ); and that Indonesia compromised forestry laws to make exceptions for open‐pit mining in protected areas after threats of international arbitration by investors (Brown, ; Gross, ; Tienhaara, 2016).…”

“…First, if the policy is pursued ‘as is’ it may be challenged by a foreign investor through investor‐state arbitration. In this circumstance it is possible to have a chilling effect, either anticipatory, as one commentator suggested the Pacific Rim v El Salvador case may have put a chill on policy making around metal mining for seven years while the case was deliberated (Provost and Kennard, ); or a specific response chill, as noted with New Zealand delaying its tobacco plain packaging policy while similar policy was being challenged in arbitral proceedings (Hepburn and Nottage, ; Shekhar, ). Alternatively, if the policy goes unchallenged this may also send positive signals to states to proceed with similar policy measures.…”

Dilemas na implementação da Convenção-Quadro para o Controle do Tabaco da Organização Mundial da Saúde

“…The inhibitory effect thus has a direct impact on the States' decision-making autonomy and capacity to regulate on issues of public interest. It is true that several variables can affect the decisionmaking process as to a law's enforcement, but it is possible to that the investor-State mechanism has caused regulatory chill and curtailed the political room for States to internalize policies that follow the Plain Packaging recommendations 45,46,47,48,49 .…”

“…As regards the Australian case, despite the fact that the State justifies the Plain Packaging Law under the government's sovereign authority to implement public health measures, PMA launched a dispute under the ISDS system in the sphere of the Australia-Hong Kong bilateral investment agreement, claiming that the new law would interfere in the company's trademark rights, constituting an indirect expropriation. The tobacco lobby argued that its products had been turned into "unbranded commodities and 'substantially diminishing' the value of its investment in Austrália" 48 (p. 308). The intent behind the litigation was to prevent the policy's implementation in Australia and mainly to threaten other countries that were considering similar measures 30,49 .…”