Online Program

Investor-State Dispute Settlement Mechanism in International Trade and Its Impact on Public Health

Tuesday, November 3, 2015 : 9:10 a.m. - 9:30 a.m.

David Kelly, M.A., M.I.M., M.P.H., Faculty of Public Health and Policy, Department of Global Health and Development, London School of Hygiene and Tropical Medicine, London, United Kingdom
Investor-state dispute settlement (ISDS) mechanism is an instrument of public international law which grants an investor the right to use dispute settlement proceedings against a foreign government. ISDS provisions are included international trade agreements, such as the North American Free Trade Agreement (NAFTA). If an investor from country "A" ("Home State") invests in country "B" ("Host State"), both States have agreed to ISDS and the Host State violates the rights granted to the investor under public international law, then that investor may raise the issue and bring the matter to an arbitration tribunal. There has been much debate concerning the impact of ISDS on the ability of governments to implement legislation and public policy concerning public health, environment protection and human rights.

This presentation will examine ISDS and its impact, or potential impact, on public health policy. The dispute of Apotex, Inc. v. United States of America under NAFTA will be used as a case study. Other examples will be presented, such as the Government of Australia’s passage of the Tobacco Plain Paper Packaging Act 2011 which is being challenged by Philip Morris Asia using the ISDS mechanism. The presenter will argue for a “carve-out” of ISDS challenges for public health decisions made by a Host State, which is in line with WTO Agreements that explicitly allow governments to take measures to restrict trade in pursuing national health policy objectives.

Learning Areas:

Other professions or practice related to public health
Public health or related laws, regulations, standards, or guidelines
Public health or related public policy

Learning Objectives:
Describe the investor-state dispute settlement (ISDS) mechanism in international trade. Discuss ISDS and its impact in general on public health issues.

Keyword(s): International Health, Public Policy

Presenting author's disclosure statement:

Qualified on the content I am responsible for because: I have twenty years experience working in international trade and public health. In my position at the U.S. Food & Drug Administration, I participate in international trade and public health issues. I witnessed first-hand the use of the investor-state dispute settlement mechanism under the North American Free Trade Agreement in the case of Apotex v. the United States of America.
Any relevant financial relationships? Yes

Name of Organization Clinical/Research Area Type of relationship
U.S. Food & Drug Administration government regulation Employment (includes retainer)

I agree to comply with the American Public Health Association Conflict of Interest and Commercial Support Guidelines, and to disclose to the participants any off-label or experimental uses of a commercial product or service discussed in my presentation.