"General Public Policy Exceptions in International Investment Agreements (IIAs): Opportunities and Challenges in Times of Global Health Crisis"
Yi Tang (PhD Candidate)
Asian Journal of WTO & International Health Law and Policy
Published online: Oct 2024
Abstract: This article delves into the efficacy of general public policy exceptions within International Investment Agreements (hereinafter “IIAs”) against the backdrop of the unprecedented global health crisis precipitated by the COVID-19 pandemic. By empirically surveying the use of general public policy exceptions in IIAs, the research highlights a discernible trend towards the incorporation of such exceptions in new-generation IIAs, aimed at reconciling investment protection with the host state’s regulatory autonomy for public welfare. However, the examination of arbitral jurisprudence reveals the tribunals’ challenges in coherently and effectively applying these exceptions, often resulting in outcomes that diverge from the contracting states’ expectations and the objectives underlying these treaty innovations. This analysis is particularly important and timely in the context of the COVID-19 crisis, where the potential surge in investor-state disputes arising from pandemic-related regulatory measures poses pressing questions about the efficacy and scope of general public policy exceptions. However, the prevailing uncertainties in arbitral interpretations may cast a significant shadow on the prospective utility of these exceptions. In light of these challenges, this article calls for a holistic reform of IIAs and a recalibration of arbitral practice, advocating for enhanced engagement with World Trade Organization (hereinafter “WTO”) jurisprudence and the provision of explicit clarifications within IIAs to ensure that general public policy exceptions fulfil their intended purpose.
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