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Public health clauses in international investment agreements: Sword or shield?

Public health clauses in international investment agreements: Sword or shield? Policy ImplicationsThis study points to an opportunity for governments and multilateral organisations to encourage a diversity of health inclusions in BITs to encompass multiple purposes, including defensive and offensive clauses.This novel and comprehensive data set can give policymakers insights regarding the widespread and increasing use of defensive clauses to carve out policy space for health measures in BITs.There is an opportunity for an improved understanding of health inclusions to inform renegotiation of BITs that still lack such flexibility.The analysis highlights an opportunity for health policymakers to engage strategically with investment policymakers to encourage the inclusion of more proactive and progressive health clauses into international investment agreements.THE INTERFACE BETWEEN INVESTMENT TREATIES AND PUBLIC HEALTH POLICYInternational Investment Agreements (IIAs) form part of government efforts to attract and protect foreign investment through the creation of a stable policy environment (Bonnitcha et al., 2017). The over 2500 IIAs currently active are intended to contribute to national economic policy objectives, including economic growth, the development of new industries and employment growth. However, IIAs also impact other policy fields from environmental protection to climate change adaptation to public health.On the one hand, IIAs are increasingly perceived as a threat to domestic policy autonomy and states' regulation to achieve public interest objectives (Spears 2010). IIAs grant foreign investors greater rights than those afforded to domestic businesses, and these rights are supported by recourse to international dispute settlement mechanisms (Bonnitcha et al., 2017). Some of the 1104 Investor‐State Dispute Settlement (ISDS) claims launched under IIAs until 2020 (UNCTAD, 2020) have targeted sensitive general public policy legislation such as tobacco control laws mandating plain cigarette packaging (Voon & Mitchell, 2016). Although only a minority of all ISDS claims have been successful, and none regarding tobacco, some commentators assert that the mere risk of such claims that could result in multi‐million dollar awards in favour of the foreign investor can contribute to regulatory chill, a situation in which governments hesitate to adopt a certain regulation due to a perceived risk of dispute (Moehlecke, 2019; Schram et al., 2018).On the other hand, IIAs can play a role in channelling and regulating foreign investment. Foreign direct investment (FDI) remains an important source of international financing and is increasingly channelled to sustain non‐economic objectives. Foreign capital is considered vital to achieve the transition to net‐zero carbon emissions (Vasani & Allen, 2020). Furthermore, after the pandemic demonstrated the vulnerabilities of states due to supply chain shocks and a lack of production capacity for vaccines or medical equipment, FDI has emerged as a major component for building resilience through diversification and for boosting manufacturing capacity including vaccines in developing countries. Beyond channelling and liberalising foreign direct investment, governments are increasingly committed to regulating FDI to safeguard public interest objectives (Ufimtseva, 2020). This involves greater corporate social responsibilities (CSR) of foreign investors.Against that ambivalent policy backdrop, this paper conducts the first comprehensive mapping of the purpose of health references in bilateral investment treaties (BITs). Do these health clauses primarily act as a ‘shield’ to mitigate the risks posed by these treaties for public health regulation or do they act as a ‘sword’ leveraging FDI to advance a public health agenda? The paper finds that health provisions have been part of the BIT universe from the start, but that their functions widened recently. Most health references are defensive in nature, preserving health‐related policy space through clarifications or exceptions, or ensuring that existing levels of health protection are not lowered to attract investment. However, a small number of recent agreements have developed an offensive component seeking to actively channel FDI into health projects and to regulate the health‐related responsibilities of investors explicitly. Hence, while most health clauses in BITs are shields rather than swords, policymakers, especially in developing countries, increasingly leverage them to advance a positive public health agenda.BACKGROUND TO HEALTH CONCERNS AND SAFEGUARDS IN IIASIIAs have drawn increased attention from health advocates and policymakers. As noted above, the objectives of IIAs are in many ways complementary to those of the health sector and can provide an avenue for industry to engage with the government on policy measures (Sheargold & Mitchell, 2019; Ufimtseva, 2020). However, IIAs have been used by industry actors to dispute health policy measures in critical areas including tobacco control, access to medicines, transportation and disposal of hazardous waste, health insurance, access to pharmaceuticals and regulations to improve the economic situation of minority populations (Baetens, 2022; Bernasconi‐Osterwalder et al., 2012; Sheargold & Mitchell, 2019). Following the advent of the COVID‐19 pandemic, health‐related concerns have recently escalated. As governments have sought to address and ensure access to healthcare, the emergency measures states have taken have had severe impacts on major industries, including transport and private health care, raising concerns regarding ISDS disputes. The Chilean government's COVID‐19 measures are under scrutiny for a breach of core investment protection obligations of the Chile‐France BIT (International Institute for Sustainable Development, 2021). In addition, the government of Italy faces potential claims with regard to its emergency requisitioning of private medical equipment during the COVID‐19 crisis (Benedetteli, 2020). Similarly, concerns have been raised about the potential for claims regarding compulsory licensing and intellectual property rights (Mercurio & Upreti, 2022; Ranjan, 2021). In that context, UNCTAD has called for holistic reform of IIAs to align health and investment concerns (UNCTAD, 2021).Prior studies suggest that IIAs can be used to undermine the adoption and implementation of strong health policies in two key ways. First, IIAs can limit the policy tools available to the government for protecting and promoting health; for example health‐related labelling requirements for tobacco, food and alcohol have been contested on the basis of their impact on profits (e.g. as ‘indirect expropriation’). Although most of these challenges of public health measures have been unsuccessful, they have sometimes led to amendments that weaken policy design or regulatory chill (Thow et al., 2022; Voon & Mitchell, 2016). Similarly, provisions within IIAs that enshrine long patent protection for medicines can weaken national pharmaceutical policies (Gleeson et al., 2017; Gleeson et al., 2018; Rimmer, 2017). Second, IIAs enable a high level of industry participation in policymaking, through ISDS mechanisms that allow the industry to directly sue governments for compensation and requirements for open participation in decision‐making, which has led to concerns regarding influence on national health policy (Schram, 2018; Thow et al., 2015).Governments have increasingly included specific clauses within IIAs to safeguard health policy, seeking to protect effective health policy measures from the limitations and challenges described above. Recent IIAs acknowledge public health concerns explicitly (Baetens, 2022). More than 90% of the 55 investment agreements signed since 2018 include explicit references to public health (UNCTAD, 2021). These efforts have included clauses that clarify explicitly that the articles of the IIA should not preclude countries from taking legitimate health measures, or that exempt tobacco control measures from dispute settlement (Alschner & Hui, 2019; Giorgetti, 2018; Mitchell & Sheargold, 2015). The jury is still out on whether these new clauses are effective in protecting domestic public policymaking (Alschner, 2022). Yet, the likelihood of health policy measures being upheld as legitimate during IIA dispute settlement is, in part, linked to the strength of relevant language in the agreement (Sheargold & Mitchell, 2019).However, to our knowledge, researchers have not yet comprehensively studied health mentions in IIAs. Scholars have instead focused on the normative issues raised by specific health‐related claims, have studied the investment/health nexus from a qualitative perspective or focused exclusively on the most recent generation of treaties. We seek to place the debate on the interaction of health and investment treaties on a firm empirical footing by undertaking a comprehensive mapping of health mentions in all BITs signed between 1959 and 2021.OUR APPROACH TO MAPPING EXPLICIT HEALTH INCLUSIONS IN BITSIn this paper, we map the policy function of explicit health mentions in over 3000 BITs. Mapping the form and purpose of health inclusions can provide insights for states in (re)negotiating IIAs that support domestic health policy objectives and also guide future research. The experiences of other countries and existing textual inclusions in IIAs can be important in demonstrating the opportunities for, and feasibility of, health inclusions (Haftel & Thompson, 2018; Manger & Peinhardt, 2017; Schram, 2018). The aim of our analysis is to examine and typologise the purpose of existing health safeguards in BITs, in order to inform future treaty drafting and future research regarding the interface between investment and health policy.Three methodological caveats are important to note. First, although IIAs are mostly made up of BITs, some free trade agreements also contain investment chapters, which we intend to consider in future analyses. Investment chapters have been included in recent ‘mega‐regional’ free trade agreements, with application across a wide range of countries, which make them an important focus of future research. Second, investment treaties may deal with health concerns explicitly and implicitly. We have focussed here on explicit references, which we have defined as those where the word ‘health’ appears in the text; for example, in general, exceptions that specifically carve out public health measures from the treaty's investment protection commitments. Implicit references, in contrast, omit the word health but have a close nexus to the health space; for example provisions related to the use of compulsory licences, as they pertain to access to medicines or specific tobacco carveouts. While this study focuses on explicit health references, we intend to investigate implicit and indirect references in future work.Third, in this study, we focus on the health policy orientation of a clause, that is its purpose, but not its effect or effectiveness. We acknowledge how clauses are worded and whether health mentions are found in intention‐signalling preambles or the operational provisions of a treaty's body, and how or whether they are enforceable, matters, especially in the context of dispute settlement. We therefore aim to distinguish between the legal strength of different clause formulations in future work. In this study, we note and further detail below that we found variation in the legal strength and design within and across every category. Put differently, policy purpose and legal strength are distinct dimensions. States pursuing similar policy objectives can craft their clauses in soft or hard language or make them more or less enforceable.We rely on the Electronic Database of Investment Treaties (EDIT) (Alschner et al., 2021) for our BIT data (status: December 2021). EDIT contains 3298 BITs of which 3137 (or 95%) come with available full text. This includes treaties currently in force, signed but not in force and terminated treaties. We extracted meta‐information for all BITs that contain the word ‘health’ and the immediate article text surrounding the mention. We then excluded (rare) mentions that use the word in unrelated contexts, for example ‘to promote a healthy, stable and sustainable development of economy’ (Preamble, China‐Congo BIT). Finally, we manually categorised these health mentions by policy purpose.TRENDS IN HEALTH INCLUSIONS IN BITSHealth provisions were included in some of the initial BITs, but their use waned before recently surging again. Our analysis of EDIT shows that overall, 18% (584/3298) of BITs contained explicit health inclusions (Figure 1). The first mention of ‘health’ occurred in the very first BIT signed in 1959 between Germany and Pakistan. Health inclusions in BITs were initially common, but waned during the 1970s and 1980s and became very uncommon during the 1990s when the majority of BITs were signed (Figure 1). Inclusions increased again during the 2000s. Although fewer BITs were signed during this period, the proportion including a mention of health rose from 45% to over 60%.1FIGUREProportion of Bilateral Investment Treaties mentioning health over time, 1959–2019. Source: Electronic Database of Investment Treaties.We identified 584 BITs containing a total of 934 unique mentions of health. Drawing on legal, international public policy and public health perspectives, we categorised each mention of the word health based on its health policy purpose. We identified three over‐arching ways in which these mentions mediate the interaction of public health and investment protection from a public health perspective (Table 1): (1) they can be defensive, shielding health policy space from intrusions (health clause as a ‘shield’), (2) they can be neutral, managing the interface between both regimes and (3) they can be progressive, leveraging investment for a health policy agenda (health clause as a ‘sword’). Each of these three categories was further subdivided into two categories to account for varying legal and substantive forms this policy purpose may take.1TABLEPolicy function or purpose of explicit health inclusions in Bilateral Investment Treaties (analysis of the 584 BITs mentioning health).CategoryNumberLegal classMain Types of inclusionsExamplesRight to regulate (defensive)Clarifications of definitions, relevant to public health162Clarification or clause–specific exclusionHealth measures shall not be considered discriminatory for the purposes of national and most–favoured nation treatmentGermany – Pakistan BIT (1959), Annex; Egypt – Romania BIT (1994), Annex; Senegal – United States of America BIT (1983), Art. II105Non‐discriminatory health measures are not indirect expropriation or breaches of FETRwanda – United States of America BIT (2008), Annex; Chad – China BIT (2010), Art. 610Market access subject to domestic lawsCentral African Republic – Germany BIT (1965), Attachments; Lebanon – Syrian Arab Republic BIT (1997), Areas of investment40Health conditions not performance requirementCanada – Serbia BIT (2014), Performance requirements; Austria – Kuwait BIT (1996), Protection of investmentsPreserving the right to adopt and enforce health measures213General ExceptionsGeneral ExceptionsChina – Singapore BIT (1985), Art. 11; Canada – Jordan BIT (2009), Art. 10; Bangladesh – Turkey BIT (2012), Art. 542AnnexesHealth sector reservationsCanada – Romania BIT (2009), Schedules; Chile – Hong Kong SAR Investment Agreement (2016), Schedules11Preamble or ExceptionRight to regulate investment to achieve health objectivesChile – Hong Kong SAR Investment Agreement (2016), Art. 15; Taiwan Province of China – Viet Nam BIT (2019), Art. 17Health/ investment interface (neutral)Prevent erosion of existing levels of health protection227Preamble or ObligationBIT objectives to be achieved without relaxing health measuresBangladesh – Turkey BIT (2012), Preamble, Art. 4; Georgia – Japan BIT (2021) Preamble, Art. 2022ProcedureEnforcement via state–stateCanada – Moldova BIT (2018), Art. 20Coordination across the policy sectors of health and investment25ObligationRecognition of health as a purpose for lawful expropriationDenmark – Uganda BIT (2001), Art. 526DefinitionDefinition of environmental and labour laws to include healthBLEU – Libya BIT (2004), Art. 127ProcedureTribunals can appoint health expertsCanada – Kuwait BIT (2011), Art. 33; Costa Rica – United Arab Emirates BIT (2017), Art. 14Advancing a public health agenda (progressive)Health–related responsibilities of investors3ObligationCompensation by investors for loss or damage to public healthBangladesh – Denmark BIT (2009), Art. 2; Bangladesh – Turkey BIT (2012), Art. 415ObligationCorporate social responsibility of investors to comply with public health laws and principlesBrazil – Mexico CFIA (2015), Art. 13; Nigeria – Singapore BIT (2016), Art. 11Leveraging investment policy for public health6Preamble or ObligationCooperation and investment in public healthSlovakia – United Arab Emirates BIT (2016), Preamble, China – EU Comprehensive Agreement on Investment (2021), Art. 5Note: many BITs have more than one health mention. Source: Electronic Database of Investment Treaties (EDIT); project team analysis.The most common purpose, present in 76% of all BITs with health mentions, was defensive and protects the right of states to regulate with respect to public health. This comes in two legal forms. First, 51% of BITs (297/584) provide definitions and clarifications of investment protection obligations that carve out regulatory space for public health. For example, already the very first BIT signed between Germany and Pakistan in 1959 noted that measures taken for reasons of public health do not constitute a discrimination even if they treat foreign and domestic investment differently. More recently, states have clarified in their BITs that non‐discriminatory measures enacted to protect legitimate social objectives, such as health, do not constitute an indirect expropriation and do not trigger an obligation to compensate foreign investors. A second type of health mention in 40% of BITs (231/584) justifies public health measures in relation to the entire treaty. For example, general exceptions modelled on international trade law that excuse acts otherwise inconsistent with the treaty have become more frequent in the past decade (Keene 2017; Alschner & Hui, 2019). A growing share of treaties contain both legal forms in an effort to layer flexibilities. Together they form defences that could shield health policy from claims within the existing BIT regime.A second policy purpose that was evident in 45% of BITs (265/584) seeks to manage the policy boundary between health and investment, so as to ensure health policy is not subjected to investment policy objectives or (inadvertently) undermined. These clauses are not defensive, because they are not carving out health measures from otherwise prohibited conduct, but rather mandate respect for existing health policies. Nor are they progressive, because they do not promote a positive health policy agenda and instead preserve the status quo. We therefore consider them as neutral interoperability rules. Again, they come in two variants.A first subset of clauses in 42% of BITs with health mention (245/584) prevents states from lowering health standards to attract investment. Sometimes, but not exclusively, found in preambles, these clauses stipulate that a treaty's objectives ‘can be achieved without relaxing health, safety and environmental measures of general application’ (Nicaragua – United States of America BIT 1995) or that ‘it is inappropriate to encourage investments by relaxing domestic measures relating to health’ (Argentina – United Arab Emirates BIT (2018)). Such inclusions aim to prevent a ‘race to the bottom’ in which (progressively lower) health standards are used as an avenue to lower costs and increase competitiveness. Although they are thus important from a public health perspective, they neither help protect against ISDS claims (‘shield’) nor do they advance a positive health agenda (‘sword’). Instead, they reinforce the existing status quo for health policy. We thus consider them to be ‘neutral’ in terms of their health policy purpose.A second set of clauses in 9% of BITs with health mentions (51/584) fosters explicit coordination between investment and the health sector. This encompasses a range of different clauses. A growing number of treaties give international tribunals the right to call on health experts to tap into their specialised knowledge when investors challenge health‐related measures. For example, the Canada‐Serbia BIT (2014) states that ‘a tribunal may appoint an expert to report to it in writing on a factual issue concerning environmental, health, safety or other scientific matter raised by a disputing party, subject to such terms and conditions as the disputing parties may decide’.Other coordination clauses reduce ambiguity by including health in the definitions of environmental and labour laws, identify health as a purpose for lawful expropriation and clarify that the agreement would only apply to health sector investment if the government explicitly permitted this.Finally, a relatively small number of agreements, equivalent to 4% of BITs with health mentions (23/584), advance a progressive public health agenda. These agreements are consistent of more recent vintage and again come in two guises. First, a growing number of BITs include clauses that impose health‐related obligations on investors. To date, most of these clauses have used ‘soft’ language (‘may’, ‘endeavour’, etc.) making them hortatory rather than mandatory. For example, the Brazil‐Ecuador BIT (2019, Art. 14) states that ‘investors and their investment shall endeavour to … [r]efrain from seeking or accepting exemptions that are not established in the legal or regulatory framework relating to human rights, environment, [and] health’. In contrast, the Bangladesh‐Denmark BIT (2009, Art. 2) provides more robust language: ‘if the contracting party in whose territory the investment is made, suffers from a loss, destruction or damages with regard to its public health or life … by the investor of the other contracting party, then the first contracting party shall be accorded adequate and effective compensation as per its laws and regulations, and if necessary as per international law, by the investor of the other contracting party’.Second, some BITs actively leverage investments to promote health objectives. Several older BITs seek to promote cooperation on health projects through an ‘exchange of information’. More recent treaties go further. The 2021 China‐EU Comprehensive Investment Agreement, for example, promotes investment for sustainable development, which includes ‘a human‐centred approach to the future of work, adequate minimum wages, social protection and safety and health at work’. Clauses pursuing a positive public health agenda remain rare, but given the traditional focus of investment agreements exclusively on investor rights and states' investment protection obligations, they signal a shift in the regime to include health objectives within the remit of BITs. Notably, the majority of parties including these clauses are developing countries, namely Brazil, Morocco, Bangladesh and China.DISCUSSIONIn this section, we draw on our mapping of explicit mentions to highlight salient patterns from a health policy perspective.The policy purpose of health inclusions has expanded over timeEarlier agreements contained only one explicit mention of health per BIT, whereas from 2005, multiple mentions of health became increasingly common. Within the BITs that include mention of health, around 20% included multiple mentions in 2005, compared to 100% in 2020 and 2021. In line with this, the purpose of explicit mentions of health has diversified (Figure 2). Furthermore, early BITs largely included provisions to protect the right to regulate namely in the form of clause‐specific exclusions. Since the mid‐1990s, provisions to manage the interface between health and investment have become increasingly common, in particular clauses specifying that investment objectives could be achieved without relaxing health standards. The inclusion of (typically soft) obligations for investors is an even more recent development, appearing only in 2015. Some of the most recent BITs, including, for example, those signed by Brazil since 2015, contain health mentions from all three categories. We therefore observe a trend towards a more holistic treatment of public health concerns in investment treaties.2FIGUREHealth inclusions by purpose, over time.Preservation of health‐related policy space reflects a global consensusIncluding explicit health mentions in BITs is a global phenomenon; almost every country has signed a BIT with a health mention. As the most popular policy purpose, the need to explicitly preserve policy space on public health in BITs was evident globally – although the specific legal form these carveouts take varied. In part, this broad consensus may be explained by greater awareness of the potential risks of investment treaties and ISDS for health policy. Researchers have noted that many IIAs were signed largely for diplomatic or broad economic purposes, often with little understanding of their implications (Poulsen & Aisbett, 2013). As governments have experienced disputes, including on matters related to public health, these implications for domestic regulatory space have become clearer and states have taken action to redesign IIAs to protect state regulatory space (Thompson et al., 2019). The result has been a review and re‐assessment of IIAs by many governments, with some terminating or renegotiating agreements (Peinhardt & Wellhausen, 2016; UNCITRAL, 2020). In particular, in response to IIA disputes, there has been a shift towards more precise text to protect regulatory space for other government objectives (Akinkugbe, 2019; Baetens, 2022; Manger & Peinhardt, 2017).It is noteworthy, however, that rising awareness of ISDS prompted the development and expansion of pre‐existing health inclusions, rather than a redesign of BITs. As we highlighted above, defensive clauses on health have been included in BITs since the 1950s. Moreover, general exceptions pre‐date the rise in investment claims in the late 1990s and early 2000s. From that perspective, the treaties signed at the height of the so‐called Washington Consensus in the early 1990s (Vandevelde 1993), when states across the globe embarked on ambitious liberalisation programmes, constitute outliers with few treaties explicitly regulating the health‐investment nexus. This has since been corrected as up to 80% of annually concluded BITs include the defensive right to regulate provision.More explicit inter‐regime coordinationThe tendency of policy regimes to operate in silos presents a broad public policy challenge. When investment treaty negotiators fail to coordinate with health policymakers (and vice versa) rulemaking in one field risks undermining the goals in the other. Our data show that this concern is being taken increasingly seriously in BITs leading to more inter‐regime interaction and coordination. Particularly encouraging in our view is that health mentions are not limited anymore to defensive concerns but actively regulate areas of interaction and use BITs to promote a positive health agenda. The range of provisions outlined above includes those that enable health experts to intervene in investment disputes, prevent erosion of health standards and that leverage treaties to promote investment in health and socially responsible investor behaviour. As such, health safeguards in BITs can ensure that both regimes mutually respect and even reinforce each other.Changing norm entrepreneursHistorically, developed states pioneered health mentions in BITs. Starting with the first‐ever BIT, more than 100 German BITs, for example, have contained health‐related carveouts. Similarly, clauses discouraging the lowering of health standards to attract investments were first developed in North America and used in BITs signed by the United States. In contrast, more recently, low‐ and middle‐income countries have taken a lead in the inclusion of provisions with the purpose of proactively advancing public health (Figure 3). Bangladesh has explicitly enshrined investor's obligation to compensate parties for public health losses in BITs with Denmark (2009, in force), Turkey (2012, in force) and Bahrain (2015, signed not in force). Brazil's recent agreements (two of which are in force, others are signed but not in force) contain some of the most robust and comprehensive clauses on health.3FIGUREParties of BITS with health inclusions that relate to expectations or responsibilities for investors.IMPLICATIONS FOR FUTURE POLICY AND RESEARCHSimilar to previous research, we found rising health inclusions in BITs, and also more diversity in health inclusions. The purpose of health inclusions, from a health policy perspective, ranges from defensive to progressive, and also include what we termed neutral interoperability rules. Previous research has documented similar general principles for safeguarding health in IIAs, including the importance of general exceptions, hortatory statements and definitions (Giorgetti, 2018; Sheargold & Mitchell, 2019; Thow et al., 2022; UNCTAD, 2021). This study provides a new perspective on health inclusions in BITs by examining their purpose. Analysing the diversity of existing health inclusions through a purpose‐based lens offers insights for future BIT design that not only allows for health policy space in a general sense but potentially takes a more active role in supporting health policy objectives (Baetens, 2022).In this analysis, we have identified several recent BITs that include more progressive health clauses. We suggest that these indicate a potential shift in purpose, with BITs becoming more proactive in health regulation than previous narratives suggest. Newer, offensive health inclusions offer an opportunity for BITs to become agreements that further health objectives. In particular, the inclusion of health mentions in CSR provisions may help to balance corporate investor rights with government and public interest objectives (Alschner & Tuerk, 2013; Garde & Zrilič, 2020; Waleson, 2015). Brazil has been a leader in developing CSR provisions in investment treaties, alongside other innovations in governance and treaty design (Monebhurrun, 2017). However, there is little indication yet of the impact of these progressive health inclusions – either for health or for treaty practice.Our examination of health inclusions over time, across over 500 BITs offers insights into current state of play. It also suggests opportunities for future research, such as detailed legal analysis of inclusions and an examination of how health inclusions, and particularly newer health inclusions, are diffusing globally. This study also contributes to future considerations of health treaty design. By describing current health inclusions, we provide a reference point for both investment and health policymakers to aid in identifying how investment policy provisions can protect and promote public health policy space.Following this initial analysis, there is an opportunity for future research to extend this purpose‐based approach to examine implicit health‐related clauses, such as provisions relating to intellectual property rights or tobacco control (Mercurio, 2015). In particular, the COVID‐19 pandemic has highlighted the importance of compulsory licensing provisions and fair and equitable treatment provisions in ensuring that governments have policy space to pursue their health policy objectives (Benedetteli, 2020; Mercurio & Upreti, 2022; Ranjan, 2021). Adapting a purpose‐based analytical approach to examining these other, implicit, health provisions would offer new insights for the design of future BITs.ACKNOWLEDGEMENTSOpen access publishing facilitated by The University of Sydney, as part of the Wiley ‐ The University of Sydney agreement via the Council of Australian University Librarians.FUNDING INFORMATIONThis study was funded by the Social Sciences and Humanities Research Council of Canada (SSHRC), ‘Multilateralizing “WTO‐extra” Issues: A Computational Analysis of Rule Convergence in Preferential Trade Agreements’; and the NationalHealth and Medical Research Council (NHMRC, Government of Australia), Grant ID 2012233.CONFLICT OF INTEREST STATEMENTThe authors declare no conflict of interest.DATA AVAILABILITY STATEMENTThe data that support the findings of this study are openly available in the Electronic Database of Investment Treaties (EDIT) at https://edit.wti.org/document/investment‐treaty/search.ETHICS APPROVAL STATEMENTEthics approval was not required for this study.REFERENCESAkinkugbe, O.D. 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Public health clauses in international investment agreements: Sword or shield?

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Copyright © 2023 University of Durham and John Wiley & Sons, Ltd
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Abstract

Policy ImplicationsThis study points to an opportunity for governments and multilateral organisations to encourage a diversity of health inclusions in BITs to encompass multiple purposes, including defensive and offensive clauses.This novel and comprehensive data set can give policymakers insights regarding the widespread and increasing use of defensive clauses to carve out policy space for health measures in BITs.There is an opportunity for an improved understanding of health inclusions to inform renegotiation of BITs that still lack such flexibility.The analysis highlights an opportunity for health policymakers to engage strategically with investment policymakers to encourage the inclusion of more proactive and progressive health clauses into international investment agreements.THE INTERFACE BETWEEN INVESTMENT TREATIES AND PUBLIC HEALTH POLICYInternational Investment Agreements (IIAs) form part of government efforts to attract and protect foreign investment through the creation of a stable policy environment (Bonnitcha et al., 2017). The over 2500 IIAs currently active are intended to contribute to national economic policy objectives, including economic growth, the development of new industries and employment growth. However, IIAs also impact other policy fields from environmental protection to climate change adaptation to public health.On the one hand, IIAs are increasingly perceived as a threat to domestic policy autonomy and states' regulation to achieve public interest objectives (Spears 2010). IIAs grant foreign investors greater rights than those afforded to domestic businesses, and these rights are supported by recourse to international dispute settlement mechanisms (Bonnitcha et al., 2017). Some of the 1104 Investor‐State Dispute Settlement (ISDS) claims launched under IIAs until 2020 (UNCTAD, 2020) have targeted sensitive general public policy legislation such as tobacco control laws mandating plain cigarette packaging (Voon & Mitchell, 2016). Although only a minority of all ISDS claims have been successful, and none regarding tobacco, some commentators assert that the mere risk of such claims that could result in multi‐million dollar awards in favour of the foreign investor can contribute to regulatory chill, a situation in which governments hesitate to adopt a certain regulation due to a perceived risk of dispute (Moehlecke, 2019; Schram et al., 2018).On the other hand, IIAs can play a role in channelling and regulating foreign investment. Foreign direct investment (FDI) remains an important source of international financing and is increasingly channelled to sustain non‐economic objectives. Foreign capital is considered vital to achieve the transition to net‐zero carbon emissions (Vasani & Allen, 2020). Furthermore, after the pandemic demonstrated the vulnerabilities of states due to supply chain shocks and a lack of production capacity for vaccines or medical equipment, FDI has emerged as a major component for building resilience through diversification and for boosting manufacturing capacity including vaccines in developing countries. Beyond channelling and liberalising foreign direct investment, governments are increasingly committed to regulating FDI to safeguard public interest objectives (Ufimtseva, 2020). This involves greater corporate social responsibilities (CSR) of foreign investors.Against that ambivalent policy backdrop, this paper conducts the first comprehensive mapping of the purpose of health references in bilateral investment treaties (BITs). Do these health clauses primarily act as a ‘shield’ to mitigate the risks posed by these treaties for public health regulation or do they act as a ‘sword’ leveraging FDI to advance a public health agenda? The paper finds that health provisions have been part of the BIT universe from the start, but that their functions widened recently. Most health references are defensive in nature, preserving health‐related policy space through clarifications or exceptions, or ensuring that existing levels of health protection are not lowered to attract investment. However, a small number of recent agreements have developed an offensive component seeking to actively channel FDI into health projects and to regulate the health‐related responsibilities of investors explicitly. Hence, while most health clauses in BITs are shields rather than swords, policymakers, especially in developing countries, increasingly leverage them to advance a positive public health agenda.BACKGROUND TO HEALTH CONCERNS AND SAFEGUARDS IN IIASIIAs have drawn increased attention from health advocates and policymakers. As noted above, the objectives of IIAs are in many ways complementary to those of the health sector and can provide an avenue for industry to engage with the government on policy measures (Sheargold & Mitchell, 2019; Ufimtseva, 2020). However, IIAs have been used by industry actors to dispute health policy measures in critical areas including tobacco control, access to medicines, transportation and disposal of hazardous waste, health insurance, access to pharmaceuticals and regulations to improve the economic situation of minority populations (Baetens, 2022; Bernasconi‐Osterwalder et al., 2012; Sheargold & Mitchell, 2019). Following the advent of the COVID‐19 pandemic, health‐related concerns have recently escalated. As governments have sought to address and ensure access to healthcare, the emergency measures states have taken have had severe impacts on major industries, including transport and private health care, raising concerns regarding ISDS disputes. The Chilean government's COVID‐19 measures are under scrutiny for a breach of core investment protection obligations of the Chile‐France BIT (International Institute for Sustainable Development, 2021). In addition, the government of Italy faces potential claims with regard to its emergency requisitioning of private medical equipment during the COVID‐19 crisis (Benedetteli, 2020). Similarly, concerns have been raised about the potential for claims regarding compulsory licensing and intellectual property rights (Mercurio & Upreti, 2022; Ranjan, 2021). In that context, UNCTAD has called for holistic reform of IIAs to align health and investment concerns (UNCTAD, 2021).Prior studies suggest that IIAs can be used to undermine the adoption and implementation of strong health policies in two key ways. First, IIAs can limit the policy tools available to the government for protecting and promoting health; for example health‐related labelling requirements for tobacco, food and alcohol have been contested on the basis of their impact on profits (e.g. as ‘indirect expropriation’). Although most of these challenges of public health measures have been unsuccessful, they have sometimes led to amendments that weaken policy design or regulatory chill (Thow et al., 2022; Voon & Mitchell, 2016). Similarly, provisions within IIAs that enshrine long patent protection for medicines can weaken national pharmaceutical policies (Gleeson et al., 2017; Gleeson et al., 2018; Rimmer, 2017). Second, IIAs enable a high level of industry participation in policymaking, through ISDS mechanisms that allow the industry to directly sue governments for compensation and requirements for open participation in decision‐making, which has led to concerns regarding influence on national health policy (Schram, 2018; Thow et al., 2015).Governments have increasingly included specific clauses within IIAs to safeguard health policy, seeking to protect effective health policy measures from the limitations and challenges described above. Recent IIAs acknowledge public health concerns explicitly (Baetens, 2022). More than 90% of the 55 investment agreements signed since 2018 include explicit references to public health (UNCTAD, 2021). These efforts have included clauses that clarify explicitly that the articles of the IIA should not preclude countries from taking legitimate health measures, or that exempt tobacco control measures from dispute settlement (Alschner & Hui, 2019; Giorgetti, 2018; Mitchell & Sheargold, 2015). The jury is still out on whether these new clauses are effective in protecting domestic public policymaking (Alschner, 2022). Yet, the likelihood of health policy measures being upheld as legitimate during IIA dispute settlement is, in part, linked to the strength of relevant language in the agreement (Sheargold & Mitchell, 2019).However, to our knowledge, researchers have not yet comprehensively studied health mentions in IIAs. Scholars have instead focused on the normative issues raised by specific health‐related claims, have studied the investment/health nexus from a qualitative perspective or focused exclusively on the most recent generation of treaties. We seek to place the debate on the interaction of health and investment treaties on a firm empirical footing by undertaking a comprehensive mapping of health mentions in all BITs signed between 1959 and 2021.OUR APPROACH TO MAPPING EXPLICIT HEALTH INCLUSIONS IN BITSIn this paper, we map the policy function of explicit health mentions in over 3000 BITs. Mapping the form and purpose of health inclusions can provide insights for states in (re)negotiating IIAs that support domestic health policy objectives and also guide future research. The experiences of other countries and existing textual inclusions in IIAs can be important in demonstrating the opportunities for, and feasibility of, health inclusions (Haftel & Thompson, 2018; Manger & Peinhardt, 2017; Schram, 2018). The aim of our analysis is to examine and typologise the purpose of existing health safeguards in BITs, in order to inform future treaty drafting and future research regarding the interface between investment and health policy.Three methodological caveats are important to note. First, although IIAs are mostly made up of BITs, some free trade agreements also contain investment chapters, which we intend to consider in future analyses. Investment chapters have been included in recent ‘mega‐regional’ free trade agreements, with application across a wide range of countries, which make them an important focus of future research. Second, investment treaties may deal with health concerns explicitly and implicitly. We have focussed here on explicit references, which we have defined as those where the word ‘health’ appears in the text; for example, in general, exceptions that specifically carve out public health measures from the treaty's investment protection commitments. Implicit references, in contrast, omit the word health but have a close nexus to the health space; for example provisions related to the use of compulsory licences, as they pertain to access to medicines or specific tobacco carveouts. While this study focuses on explicit health references, we intend to investigate implicit and indirect references in future work.Third, in this study, we focus on the health policy orientation of a clause, that is its purpose, but not its effect or effectiveness. We acknowledge how clauses are worded and whether health mentions are found in intention‐signalling preambles or the operational provisions of a treaty's body, and how or whether they are enforceable, matters, especially in the context of dispute settlement. We therefore aim to distinguish between the legal strength of different clause formulations in future work. In this study, we note and further detail below that we found variation in the legal strength and design within and across every category. Put differently, policy purpose and legal strength are distinct dimensions. States pursuing similar policy objectives can craft their clauses in soft or hard language or make them more or less enforceable.We rely on the Electronic Database of Investment Treaties (EDIT) (Alschner et al., 2021) for our BIT data (status: December 2021). EDIT contains 3298 BITs of which 3137 (or 95%) come with available full text. This includes treaties currently in force, signed but not in force and terminated treaties. We extracted meta‐information for all BITs that contain the word ‘health’ and the immediate article text surrounding the mention. We then excluded (rare) mentions that use the word in unrelated contexts, for example ‘to promote a healthy, stable and sustainable development of economy’ (Preamble, China‐Congo BIT). Finally, we manually categorised these health mentions by policy purpose.TRENDS IN HEALTH INCLUSIONS IN BITSHealth provisions were included in some of the initial BITs, but their use waned before recently surging again. Our analysis of EDIT shows that overall, 18% (584/3298) of BITs contained explicit health inclusions (Figure 1). The first mention of ‘health’ occurred in the very first BIT signed in 1959 between Germany and Pakistan. Health inclusions in BITs were initially common, but waned during the 1970s and 1980s and became very uncommon during the 1990s when the majority of BITs were signed (Figure 1). Inclusions increased again during the 2000s. Although fewer BITs were signed during this period, the proportion including a mention of health rose from 45% to over 60%.1FIGUREProportion of Bilateral Investment Treaties mentioning health over time, 1959–2019. Source: Electronic Database of Investment Treaties.We identified 584 BITs containing a total of 934 unique mentions of health. Drawing on legal, international public policy and public health perspectives, we categorised each mention of the word health based on its health policy purpose. We identified three over‐arching ways in which these mentions mediate the interaction of public health and investment protection from a public health perspective (Table 1): (1) they can be defensive, shielding health policy space from intrusions (health clause as a ‘shield’), (2) they can be neutral, managing the interface between both regimes and (3) they can be progressive, leveraging investment for a health policy agenda (health clause as a ‘sword’). Each of these three categories was further subdivided into two categories to account for varying legal and substantive forms this policy purpose may take.1TABLEPolicy function or purpose of explicit health inclusions in Bilateral Investment Treaties (analysis of the 584 BITs mentioning health).CategoryNumberLegal classMain Types of inclusionsExamplesRight to regulate (defensive)Clarifications of definitions, relevant to public health162Clarification or clause–specific exclusionHealth measures shall not be considered discriminatory for the purposes of national and most–favoured nation treatmentGermany – Pakistan BIT (1959), Annex; Egypt – Romania BIT (1994), Annex; Senegal – United States of America BIT (1983), Art. II105Non‐discriminatory health measures are not indirect expropriation or breaches of FETRwanda – United States of America BIT (2008), Annex; Chad – China BIT (2010), Art. 610Market access subject to domestic lawsCentral African Republic – Germany BIT (1965), Attachments; Lebanon – Syrian Arab Republic BIT (1997), Areas of investment40Health conditions not performance requirementCanada – Serbia BIT (2014), Performance requirements; Austria – Kuwait BIT (1996), Protection of investmentsPreserving the right to adopt and enforce health measures213General ExceptionsGeneral ExceptionsChina – Singapore BIT (1985), Art. 11; Canada – Jordan BIT (2009), Art. 10; Bangladesh – Turkey BIT (2012), Art. 542AnnexesHealth sector reservationsCanada – Romania BIT (2009), Schedules; Chile – Hong Kong SAR Investment Agreement (2016), Schedules11Preamble or ExceptionRight to regulate investment to achieve health objectivesChile – Hong Kong SAR Investment Agreement (2016), Art. 15; Taiwan Province of China – Viet Nam BIT (2019), Art. 17Health/ investment interface (neutral)Prevent erosion of existing levels of health protection227Preamble or ObligationBIT objectives to be achieved without relaxing health measuresBangladesh – Turkey BIT (2012), Preamble, Art. 4; Georgia – Japan BIT (2021) Preamble, Art. 2022ProcedureEnforcement via state–stateCanada – Moldova BIT (2018), Art. 20Coordination across the policy sectors of health and investment25ObligationRecognition of health as a purpose for lawful expropriationDenmark – Uganda BIT (2001), Art. 526DefinitionDefinition of environmental and labour laws to include healthBLEU – Libya BIT (2004), Art. 127ProcedureTribunals can appoint health expertsCanada – Kuwait BIT (2011), Art. 33; Costa Rica – United Arab Emirates BIT (2017), Art. 14Advancing a public health agenda (progressive)Health–related responsibilities of investors3ObligationCompensation by investors for loss or damage to public healthBangladesh – Denmark BIT (2009), Art. 2; Bangladesh – Turkey BIT (2012), Art. 415ObligationCorporate social responsibility of investors to comply with public health laws and principlesBrazil – Mexico CFIA (2015), Art. 13; Nigeria – Singapore BIT (2016), Art. 11Leveraging investment policy for public health6Preamble or ObligationCooperation and investment in public healthSlovakia – United Arab Emirates BIT (2016), Preamble, China – EU Comprehensive Agreement on Investment (2021), Art. 5Note: many BITs have more than one health mention. Source: Electronic Database of Investment Treaties (EDIT); project team analysis.The most common purpose, present in 76% of all BITs with health mentions, was defensive and protects the right of states to regulate with respect to public health. This comes in two legal forms. First, 51% of BITs (297/584) provide definitions and clarifications of investment protection obligations that carve out regulatory space for public health. For example, already the very first BIT signed between Germany and Pakistan in 1959 noted that measures taken for reasons of public health do not constitute a discrimination even if they treat foreign and domestic investment differently. More recently, states have clarified in their BITs that non‐discriminatory measures enacted to protect legitimate social objectives, such as health, do not constitute an indirect expropriation and do not trigger an obligation to compensate foreign investors. A second type of health mention in 40% of BITs (231/584) justifies public health measures in relation to the entire treaty. For example, general exceptions modelled on international trade law that excuse acts otherwise inconsistent with the treaty have become more frequent in the past decade (Keene 2017; Alschner & Hui, 2019). A growing share of treaties contain both legal forms in an effort to layer flexibilities. Together they form defences that could shield health policy from claims within the existing BIT regime.A second policy purpose that was evident in 45% of BITs (265/584) seeks to manage the policy boundary between health and investment, so as to ensure health policy is not subjected to investment policy objectives or (inadvertently) undermined. These clauses are not defensive, because they are not carving out health measures from otherwise prohibited conduct, but rather mandate respect for existing health policies. Nor are they progressive, because they do not promote a positive health policy agenda and instead preserve the status quo. We therefore consider them as neutral interoperability rules. Again, they come in two variants.A first subset of clauses in 42% of BITs with health mention (245/584) prevents states from lowering health standards to attract investment. Sometimes, but not exclusively, found in preambles, these clauses stipulate that a treaty's objectives ‘can be achieved without relaxing health, safety and environmental measures of general application’ (Nicaragua – United States of America BIT 1995) or that ‘it is inappropriate to encourage investments by relaxing domestic measures relating to health’ (Argentina – United Arab Emirates BIT (2018)). Such inclusions aim to prevent a ‘race to the bottom’ in which (progressively lower) health standards are used as an avenue to lower costs and increase competitiveness. Although they are thus important from a public health perspective, they neither help protect against ISDS claims (‘shield’) nor do they advance a positive health agenda (‘sword’). Instead, they reinforce the existing status quo for health policy. We thus consider them to be ‘neutral’ in terms of their health policy purpose.A second set of clauses in 9% of BITs with health mentions (51/584) fosters explicit coordination between investment and the health sector. This encompasses a range of different clauses. A growing number of treaties give international tribunals the right to call on health experts to tap into their specialised knowledge when investors challenge health‐related measures. For example, the Canada‐Serbia BIT (2014) states that ‘a tribunal may appoint an expert to report to it in writing on a factual issue concerning environmental, health, safety or other scientific matter raised by a disputing party, subject to such terms and conditions as the disputing parties may decide’.Other coordination clauses reduce ambiguity by including health in the definitions of environmental and labour laws, identify health as a purpose for lawful expropriation and clarify that the agreement would only apply to health sector investment if the government explicitly permitted this.Finally, a relatively small number of agreements, equivalent to 4% of BITs with health mentions (23/584), advance a progressive public health agenda. These agreements are consistent of more recent vintage and again come in two guises. First, a growing number of BITs include clauses that impose health‐related obligations on investors. To date, most of these clauses have used ‘soft’ language (‘may’, ‘endeavour’, etc.) making them hortatory rather than mandatory. For example, the Brazil‐Ecuador BIT (2019, Art. 14) states that ‘investors and their investment shall endeavour to … [r]efrain from seeking or accepting exemptions that are not established in the legal or regulatory framework relating to human rights, environment, [and] health’. In contrast, the Bangladesh‐Denmark BIT (2009, Art. 2) provides more robust language: ‘if the contracting party in whose territory the investment is made, suffers from a loss, destruction or damages with regard to its public health or life … by the investor of the other contracting party, then the first contracting party shall be accorded adequate and effective compensation as per its laws and regulations, and if necessary as per international law, by the investor of the other contracting party’.Second, some BITs actively leverage investments to promote health objectives. Several older BITs seek to promote cooperation on health projects through an ‘exchange of information’. More recent treaties go further. The 2021 China‐EU Comprehensive Investment Agreement, for example, promotes investment for sustainable development, which includes ‘a human‐centred approach to the future of work, adequate minimum wages, social protection and safety and health at work’. Clauses pursuing a positive public health agenda remain rare, but given the traditional focus of investment agreements exclusively on investor rights and states' investment protection obligations, they signal a shift in the regime to include health objectives within the remit of BITs. Notably, the majority of parties including these clauses are developing countries, namely Brazil, Morocco, Bangladesh and China.DISCUSSIONIn this section, we draw on our mapping of explicit mentions to highlight salient patterns from a health policy perspective.The policy purpose of health inclusions has expanded over timeEarlier agreements contained only one explicit mention of health per BIT, whereas from 2005, multiple mentions of health became increasingly common. Within the BITs that include mention of health, around 20% included multiple mentions in 2005, compared to 100% in 2020 and 2021. In line with this, the purpose of explicit mentions of health has diversified (Figure 2). Furthermore, early BITs largely included provisions to protect the right to regulate namely in the form of clause‐specific exclusions. Since the mid‐1990s, provisions to manage the interface between health and investment have become increasingly common, in particular clauses specifying that investment objectives could be achieved without relaxing health standards. The inclusion of (typically soft) obligations for investors is an even more recent development, appearing only in 2015. Some of the most recent BITs, including, for example, those signed by Brazil since 2015, contain health mentions from all three categories. We therefore observe a trend towards a more holistic treatment of public health concerns in investment treaties.2FIGUREHealth inclusions by purpose, over time.Preservation of health‐related policy space reflects a global consensusIncluding explicit health mentions in BITs is a global phenomenon; almost every country has signed a BIT with a health mention. As the most popular policy purpose, the need to explicitly preserve policy space on public health in BITs was evident globally – although the specific legal form these carveouts take varied. In part, this broad consensus may be explained by greater awareness of the potential risks of investment treaties and ISDS for health policy. Researchers have noted that many IIAs were signed largely for diplomatic or broad economic purposes, often with little understanding of their implications (Poulsen & Aisbett, 2013). As governments have experienced disputes, including on matters related to public health, these implications for domestic regulatory space have become clearer and states have taken action to redesign IIAs to protect state regulatory space (Thompson et al., 2019). The result has been a review and re‐assessment of IIAs by many governments, with some terminating or renegotiating agreements (Peinhardt & Wellhausen, 2016; UNCITRAL, 2020). In particular, in response to IIA disputes, there has been a shift towards more precise text to protect regulatory space for other government objectives (Akinkugbe, 2019; Baetens, 2022; Manger & Peinhardt, 2017).It is noteworthy, however, that rising awareness of ISDS prompted the development and expansion of pre‐existing health inclusions, rather than a redesign of BITs. As we highlighted above, defensive clauses on health have been included in BITs since the 1950s. Moreover, general exceptions pre‐date the rise in investment claims in the late 1990s and early 2000s. From that perspective, the treaties signed at the height of the so‐called Washington Consensus in the early 1990s (Vandevelde 1993), when states across the globe embarked on ambitious liberalisation programmes, constitute outliers with few treaties explicitly regulating the health‐investment nexus. This has since been corrected as up to 80% of annually concluded BITs include the defensive right to regulate provision.More explicit inter‐regime coordinationThe tendency of policy regimes to operate in silos presents a broad public policy challenge. When investment treaty negotiators fail to coordinate with health policymakers (and vice versa) rulemaking in one field risks undermining the goals in the other. Our data show that this concern is being taken increasingly seriously in BITs leading to more inter‐regime interaction and coordination. Particularly encouraging in our view is that health mentions are not limited anymore to defensive concerns but actively regulate areas of interaction and use BITs to promote a positive health agenda. The range of provisions outlined above includes those that enable health experts to intervene in investment disputes, prevent erosion of health standards and that leverage treaties to promote investment in health and socially responsible investor behaviour. As such, health safeguards in BITs can ensure that both regimes mutually respect and even reinforce each other.Changing norm entrepreneursHistorically, developed states pioneered health mentions in BITs. Starting with the first‐ever BIT, more than 100 German BITs, for example, have contained health‐related carveouts. Similarly, clauses discouraging the lowering of health standards to attract investments were first developed in North America and used in BITs signed by the United States. In contrast, more recently, low‐ and middle‐income countries have taken a lead in the inclusion of provisions with the purpose of proactively advancing public health (Figure 3). Bangladesh has explicitly enshrined investor's obligation to compensate parties for public health losses in BITs with Denmark (2009, in force), Turkey (2012, in force) and Bahrain (2015, signed not in force). Brazil's recent agreements (two of which are in force, others are signed but not in force) contain some of the most robust and comprehensive clauses on health.3FIGUREParties of BITS with health inclusions that relate to expectations or responsibilities for investors.IMPLICATIONS FOR FUTURE POLICY AND RESEARCHSimilar to previous research, we found rising health inclusions in BITs, and also more diversity in health inclusions. The purpose of health inclusions, from a health policy perspective, ranges from defensive to progressive, and also include what we termed neutral interoperability rules. Previous research has documented similar general principles for safeguarding health in IIAs, including the importance of general exceptions, hortatory statements and definitions (Giorgetti, 2018; Sheargold & Mitchell, 2019; Thow et al., 2022; UNCTAD, 2021). This study provides a new perspective on health inclusions in BITs by examining their purpose. Analysing the diversity of existing health inclusions through a purpose‐based lens offers insights for future BIT design that not only allows for health policy space in a general sense but potentially takes a more active role in supporting health policy objectives (Baetens, 2022).In this analysis, we have identified several recent BITs that include more progressive health clauses. We suggest that these indicate a potential shift in purpose, with BITs becoming more proactive in health regulation than previous narratives suggest. Newer, offensive health inclusions offer an opportunity for BITs to become agreements that further health objectives. In particular, the inclusion of health mentions in CSR provisions may help to balance corporate investor rights with government and public interest objectives (Alschner & Tuerk, 2013; Garde & Zrilič, 2020; Waleson, 2015). Brazil has been a leader in developing CSR provisions in investment treaties, alongside other innovations in governance and treaty design (Monebhurrun, 2017). However, there is little indication yet of the impact of these progressive health inclusions – either for health or for treaty practice.Our examination of health inclusions over time, across over 500 BITs offers insights into current state of play. It also suggests opportunities for future research, such as detailed legal analysis of inclusions and an examination of how health inclusions, and particularly newer health inclusions, are diffusing globally. This study also contributes to future considerations of health treaty design. By describing current health inclusions, we provide a reference point for both investment and health policymakers to aid in identifying how investment policy provisions can protect and promote public health policy space.Following this initial analysis, there is an opportunity for future research to extend this purpose‐based approach to examine implicit health‐related clauses, such as provisions relating to intellectual property rights or tobacco control (Mercurio, 2015). In particular, the COVID‐19 pandemic has highlighted the importance of compulsory licensing provisions and fair and equitable treatment provisions in ensuring that governments have policy space to pursue their health policy objectives (Benedetteli, 2020; Mercurio & Upreti, 2022; Ranjan, 2021). Adapting a purpose‐based analytical approach to examining these other, implicit, health provisions would offer new insights for the design of future BITs.ACKNOWLEDGEMENTSOpen access publishing facilitated by The University of Sydney, as part of the Wiley ‐ The University of Sydney agreement via the Council of Australian University Librarians.FUNDING INFORMATIONThis study was funded by the Social Sciences and Humanities Research Council of Canada (SSHRC), ‘Multilateralizing “WTO‐extra” Issues: A Computational Analysis of Rule Convergence in Preferential Trade Agreements’; and the NationalHealth and Medical Research Council (NHMRC, Government of Australia), Grant ID 2012233.CONFLICT OF INTEREST STATEMENTThe authors declare no conflict of interest.DATA AVAILABILITY STATEMENTThe data that support the findings of this study are openly available in the Electronic Database of Investment Treaties (EDIT) at https://edit.wti.org/document/investment‐treaty/search.ETHICS APPROVAL STATEMENTEthics approval was not required for this study.REFERENCESAkinkugbe, O.D. 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Global Policy – Wiley

Published: May 1, 2023

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