Economic Constitutionalism and Policy Space in Complex Systems of Multi-Level Governance: The Case of Trade and Health

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The importance of the global trade regime for health is now widely acknowledged, with much attention focused on the impact of World Trade Organization (WTO) law and dispute resolution processes and investor-state dispute settlement (ISDS) mechanisms. These offer economic actors, including health-harming corporations (e.g. in the tobacco and alcohol industries), important forms of judicial remedy in the context of an increasingly constitutionalised economic system. In this paper, we examine the implications of such economic constitutionalism for health policy at the global and European levels, drawing on the concepts of veto points and venue shopping.
At the global level, attempts to constitutionalise trade and investment law, through a proliferation of international trade and investment agreements, have created a series of new veto points at which corporations may seek to block new policies aimed at protecting or enhancing public health. Such veto points not only create additional opportunities for corporations to block unfavourable policy measures, but to ‘venue shop’, i.e. to pursue their interests in the jurisdictions and forums in which they are most likely to succeed, or to pursue multiple avenues of redress concurrently. This argument is illustrated through two case studies involving WTO and ISDS disputes and transnational tobacco companies.
At the regional level, the European Union (EU) represents the most advanced form of supranational economic constitutionalism. Economic integration is at the heart of the European integration project and EU law is based upon a liberalising imperative, the goal of which is to construct and maintain a single market between member states. As with processes of economic constitutionalism at the global level, this has implications for health policy. Moreover, the EU provides economic actors seeking to oppose health regulations with even more robust forms of legal protection and redress than are available at the global level under WTO law and ISDS processes. In this regard, we pose three related questions. First, to what extent does EU law afford corporations opportunities to challenge national-level health regulations? Second, to what extent do EU legal and political processes provide opportunities for ‘positive’ pro-health supranational regulation, including that which might offset the effects of ‘negative’ liberalising integration? Third, how do EU market-building processes differ from those of more narrowly-drawn trade and investment agreements and organisations in their implications for health? We analyse and compare two recent sets of health-related legal proceedings under EU law, the first of which challenges legislation passed by the Scottish Government to introduce minimum unit pricing for alcohol, and the second of which addresses the legality of specific aspects of the EU’s 2014 Tobacco Products Directive. We find, first, that EU law offers ample opportunities for corporations to challenge national health regulations; second, that there is significant scope for pro-health supranational regulations, but that these must be couched in the language of facilitating the single market, and are dependent on the political commitment of key policy actors; and, third, that this (limited) scope for pro-health supranational regulation distinguishes EU legal and political processes from those of other trade agreements and organisations.
Original languageEnglish
Publication statusPublished - 15 Jun 2018
EventEconomic Constitutionalism: Mapping its Contours in European and Global Governance - European University Institute, Florence, Italy
Duration: 14 Jun 201815 Jun 2018


ConferenceEconomic Constitutionalism: Mapping its Contours in European and Global Governance


  • economic consitutionalism
  • trade and health

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