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A Corporate Veto on Health Policy? Global Constitutionalism and Investor-State Dispute Settlement

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JournalJournal of health politics policy and law
DateAccepted/In press - 3 Feb 2016
DateE-pub ahead of print - 2 Jun 2016
DatePublished (current) - Oct 2016
Issue number5
Volume41
Number of pages27
Pages (from-to)969-995
Early online date2/06/16
Original languageEnglish

Abstract

The importance of trade and investment agreements for health is now widely acknowledged in the literature, with much attention now focused on the impact of investor-state dispute settlement (ISDS) mechanisms. However, much of the analysis of such agreements in the health field remains largely descriptive. We theorize the implications of ISDS mechanisms for health policy by integrating the concept of global constitutionalism with veto point theory. It is argued that attempts to constitutionalize investment law, through a proliferation of International Investment Agreements (IIAs), has created a series of new veto points at which corporations may seek to block new policies aimed at protecting or enhancing public health. The multiplicity of new veto points in this global "spaghetti bowl" of IIAs creates opportunities for corporations to venue shop; that is, to exploit the agreements, and associated veto points, through which they are most likely to succeed in blocking or deterring new regulation. These concepts are illustrated with reference to two case studies of investor-state disputes involving a transnational tobacco company, but the implications of the analysis are of equal relevance for a range of other industries and health issues.

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© 2016, Duke University Press. This is an author-produced version of the published paper. Uploaded in accordance with the publisher’s self-archiving policy. Further copying may not be permitted; contact the publisher for details

    Research areas

  • investor–state dispute settlement; bilateral investment treaties; tobacco control; tobacco industry; veto points; veto players; global constitutionalism

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