International investment law and public health:the need for forward-looking reforms

Although unsuccessful, Phillip Morris' claims against tobacco control measures implemented by Uruguay and Australia drew attention to the potential for public health measures to be challenged under international investment agreements (IIAs). This article examines how states have responded to these and other cases, with recently concluded IIAs now often containing clarifications on the scope of indirect expropriation, exceptions for public health measures, and/or carve-outs from investor-state dispute settlement for tobacco control measures or other public health measures. While these changes in treaty drafting provide some protection for policy space related to public health, this article argues that they are largely reactionary to cases that have been brought in the past, and do not address potential new battlegrounds between investors and states relating to public health, for example, emerging health risks for which we do not yet have any international consensus on the appropriate regulatory response (e.g. e-cigarettes), and the measures that many states are now taking to favour domestic producers to ensure manufacturing capability for key public health supplies and pharmaceuticals in the wake of the COVID-19 pandemic and recent geo-political tensions. This leaves a clear direction for future research into how IIAs could be drafted with flexible mechanisms that safeguard policy space for public health crises in future, which may not have been foreseen at the time of treaty drafting. The article then goes on to consider the scope for future research on how IIAs can, in fact, forward public health, through targeted investment facilitation provisions.</p

The Law on What Documents Scientists Must Keep and Disclose

Recently, several climate scientists have received demands to produce their raw data, working notes, e-mails, letters, or other communications. These demands may come in the form of subpoenas, U.S. Freedom of Information Act (FOIA) requests, or requests during litigation. Below are some general guidelines for scientists about complying with their document retention and disclosure obligations, both as a matter of routine practice and in the event of legal action. This article concerns only U.S. laws and is not legal advice, which should be sought from the scientist\u27s lawyers or those of his or her employer

促进气候友好型外国直接投资：长期合作的重要性

Commitments to facilitate climate friendly FDI increasingly feature in investment facilitation agreements, in broader trade agreements and in non-binding green economy agreements. This Perspective argues that commitments for ongoing cooperation, which identify shared priorities and establish mechanisms for implementation, are a concrete way for treaties to facilitate climate friendly FDI

Facilitating climate friendly FDI: the importance of ongoing cooperation

Commitments to facilitate climate friendly FDI increasingly feature in investment facilitation agreements, in broader trade agreements and in non-binding green economy agreements. This Perspective argues that commitments for ongoing cooperation, which identify shared priorities and establish mechanisms for implementation, are a concrete way for treaties to facilitate climate friendly FDI

NEPA and Downstream Greenhouse Gas Emissions of U.S. Coal Exports

As U.S. coal exports increase and new infrastructure is proposed to improve access to burgeoning markets in Asia, controversy has arisen regarding the scope of environmental review that should be carried out by government. In particular, there is significant disagreement as to whether the end-use of exported coal and the emissions generated by its combustion fall within the scope of environmental review. The National Environmental Policy Act of 1969 (NEPA) sets out an assessment process that applies to many Federal agency actions relating to coal export, including the grant of leases for coal mines, approval for new railway construction and the grant of permits for coal export terminals. Under NEPA, an environmental impact statement (EIS) must be prepared for any major Federal action significantly affecting the quality of the human environment. This includes direct, indirect and cumulative effects. The question of which indirect consequences of an action should be considered, and how far the review extends into upstream or downstream effects, is essentially a question of causation. Where a downstream event, such as the export and end-use of coal, is a reasonably foreseeable consequence of an action or there is a reasonably close causal relationship, then those downstream effects are within the scope of NEPA review. The greatest challenge in evaluating greenhouse gas (GHG) emissions under NEPA is determining when they are likely to have a “significant” impact on the environment. Climate change is a highly complex problem, and the GHGs emitted by any single project are unlikely to have a substantial impact on global atmospheric concentrations of carbon dioxide. Thus, agencies need to consider the cumulative impacts of these projects -- as required by NEPA -- and their relative contribution to climate change

Sound and fury: assessing the steps to safeguard regulatory autonomy in the drafting of contemporary international investment agreements

© 2018 Dr Elizabeth Anne SheargoldThere has been growing concern in recent years that international investment law, and its enforcement through investor-state dispute settlement, interferes with the regulatory autonomy of host states to enact measures for the protection of public health, the environment or other public interests. The approaches taken by investment treaty arbitrators to the consideration of regulatory purpose have been varied and inconsistent. Some tribunals have not acknowledged the relevance of the non-economic purpose of a measure, others have gone so far as to employ strict proportionality analysis to assess the merits of a measure, while other tribunals have adopted relatively lenient tests for assessing the legitimacy of social policy measures, requiring only a basic level of rationality or reasonableness. To address both public concern and the inconsistent decisions of arbitral tribunals, the parties to many contemporary international investment agreements have incorporated specific clauses in their agreements to create flexibility and protect policy space. Based on an examination of international investment agreements concluded between 2010 and 2015, the thesis evaluates the use and impact of five prevalent categories of flexibility clauses: carve-outs and non-conforming measures provisions; clarification of substantive obligations; general exceptions; preambular references to non-economic objectives; and ‘right to regulate’ provisions. The thesis analyses each of these kinds of provision and assesses their efficacy as tools to protect regulatory autonomy. Two core arguments are presented. First, the flexibility clauses that have most commonly been adopted offer only modest protection of regulatory autonomy in relation to social policy measures. The clauses adopted typically leave tribunals with considerable discretion in their application, or where the provision does specify an applicable method of review it is usually relatively stringent, such as necessity testing or strict proportionality analysis. Consequently, with regard to areas such as health and environmental policy, contemporary investment agreements entrench moderate approaches to regulatory space, rather than significantly rebalancing investor protection and the rights of host states. Second, the thesis identifies several ways in which the drafting of recent international investment agreements mirrors aspects of international trade law, demonstrating a degree of convergence between how these two fields of international economic law address the issue of regulatory autonomy. Some aspects of this convergence are positive contributions to regulatory autonomy, such as setting out more balanced purposes in the preambles of treaties or reaffirming the parties’ right to regulate for environmental protection, labour rights or other goals. However, it is argued in the thesis that transplanting approaches from the World Trade Organization agreements or preferential trade agreements into international investment agreements is not necessarily an effective means to preserve policy space and regulatory freedom