Implications of international trade and investment agreements on policy space for restricting marketing of unhealthy food and beverages to children: Lessons from inter-disciplinary expert interviews

2021 ◽  
pp. 1-41
Author(s):  
Kelly Garton ◽  
Boyd Swinburn ◽  
Anne Marie Thow
Keyword(s):  
International Trade ◽  
Market Access ◽  
Policy Design ◽  
International Investment ◽  
Unhealthy Food ◽  
Policy Space ◽  
International Investment Law ◽  
Food And Beverages ◽  
Investment Agreements ◽  
Trade And Investment

Abstract Objective: To determine the implications of international trade and investment agreements (TIAs) for national governments’ policy space to restrict the marketing of unhealthy food and beverages to children. Design: In-depth interviews based on a series of policy scenario ‘vignettes,’ guided by an adapted scenario analysis methodology. Setting: Global Participants: Nine key informants from relevant sectors, with expertise regarding the intersection of public health nutrition policy, international trade law, and international investment law. Results: Participants consistently identified the relevance of several principles, common to many TIAs: non-discrimination, necessity and justification, market access requirements and quantitative restrictions, intellectual property rights and trademark protections, and fair and equitable treatment of investors. Two main policy design factors that interact heavily with TIA-related policy space were the framing of objectives, and regulatory distinctions drawn. Contextual factors may shape the analysis of TIA-related policy space on a case-by-case basis, while the relative power of the actors and institutions involved in both domestic and international policy spheres may influence whether and how such legal constraints to policy space are activated. Conclusions: Regulatory marketing restrictions run the risk of incurring challenges under World Trade Organization (WTO) agreements and other free trade and investment agreements. However, concerned policy makers should be aware of the difference between theoretical risk, threat of a challenge, and realistic initiation and/or loss of a formal dispute. Our findings indicate that there is policy space to adopt significant marketing restrictions, though an understanding of these legal risks, and strategic policy design, are important.

scholarly journals International Trade and Investment Agreements as Barriers to Food Environment Regulation for Public Health Nutrition: A Realist Review

2020 ◽  
Author(s):  
Kelly Garton ◽  
Anne Marie Thow ◽  
Boyd Swinburn
Keyword(s):  
Public Health ◽  
International Trade ◽  
Food Environment ◽  
Policy Design ◽  
Realist Review ◽  
Nutrition Policy ◽  
Fiscal Policies ◽  
Policy Space ◽  
Investment Agreements ◽  
Trade And Investment

Background: Achieving healthy food systems will require regulation across the supply chain; however, binding international economic agreements may be constraining policy space for regulatory intervention in a way that limits uptake of ‘best-practice’ nutrition policy. A deeper understanding of the mechanisms through which this occurs, and under which conditions, can inform public health engagement with the economic policy sector. Methods: We conducted a realist review of nutrition, policy and legal literature to identify mechanisms through which international trade and investment agreements (TIAs) constrain policy space for priority food environment regulations to prevent non-communicable diseases (NCDs). Recommended regulations explored include fiscal policies, product bans, nutrition labelling, advertising restrictions, nutrient composition regulations, and procurement policies. The process involved 5 steps: initial conceptual framework development; search for relevant empirical literature; study selection and appraisal; data extraction; analysis and synthesis, and framework revision. Results: Twenty-six studies and 30 institutional records of formal trade/investment disputes or specific trade concerns (STCs) raised were included. We identified 13 cases in which TIA constraints on nutrition policy space could be observed. Significant constraints on nutrition policy space were documented with respect to fiscal policies, product bans, and labelling policies in 4 middle-income country jurisdictions, via 3 different TIAs. In 7 cases, trade-related concerns were raised but policies were ultimately preserved. Two of the included cases were ongoing at the time of analysis. TIAs constrained policy space through 1) TIA rules and principles (non- discrimination, necessity, international standards, transparency, intellectual property rights, expropriation, and fair and equitable treatment), and 2) interaction with policy design (objectives framed, products/services affected, nutrient thresholds chosen, formats, and time given to comment or implement). Contextual factors of importance included: actors/institutions, and political/regulatory context. Conclusion: Available evidence suggests that there are potential TIA contributors to policy inertia on nutrition. Strategic policy design can avoid most substantive constraints. However, process constraints in the name of good regulatory practice (investor-state dispute settlement (ISDS), transparency, regulatory coherence, and harmonisation) pose a more serious threat of reducing government policy space to enact healthy food policies.

Consolidating International Investment Law: The Mega-Regionals as a Pathway towards Multilateral Rules

2017 ◽  
Vol 17 (1) ◽  
pp. 33-63 ◽  
Author(s):  
TANIA VOON
Keyword(s):  
International Trade ◽  
United Nations ◽  
International Investment ◽  
International Investment Law ◽  
Trade Law ◽  
International Trade Law ◽  
The World ◽  
Investment Law ◽  
The United Nations ◽  
Trade And Investment

AbstractPessimism abounds in international economic law. The World Trade Organization (WTO) faces an uncertain future following its Ministerial Conference in Nairobi in 2015. International investment law is under attack in countries around the world, while mega-regional agreements such as the Trans-Pacific Partnership and the Trans-Atlantic Trade and Investment Partnership are beset by world events, from the United States’ federal election to the unexpected Brexit outcome. Yet the appetite of numerous States to continue forging plurilateral trade and investment deals provides some cause for hope. Viewed alongside other institutional developments including consensus-building work at the United Nations Conference on Trade and Development and the United Nations Commission on International Trade Law, the potential arguably now exists for credible movement towards multilateral rules in investment law. While the WTO's current negotiating stalemate highlights the difficulties in reaching agreement among 164 Members, international trade law offers lessons for working towards multilateralism in the international investment law field. Alongside informal discussions about a world investment court, mega-regionals provide a vehicle for future multilateral investment rules, particularly through the Comprehensive Economic and Trade Agreement between Canada and the European Union, and the Regional Comprehensive Economic Partnership currently under negotiation in Asia.

Philip Morris v. Uruguay: The Punta del Este Declaration on the Implementation of the WHO Framework Convention on Tobacco Control

2011 ◽  
Vol 2 (2) ◽  
pp. 254-260 ◽  
Author(s):  
Benn McGrady
Keyword(s):  
International Trade ◽  
Intellectual Property ◽  
Property Rights ◽  
Tobacco Control ◽  
Intellectual Property Rights ◽  
International Investment ◽  
Philip Morris ◽  
The Relationship ◽  
Investment Agreements ◽  
Trade And Investment

In November 2010, 171 Parties to the WHO Framework Convention on Tobacco Control (WHO FCTC) unanimously adopted the Punta del Este Declaration on implementation of the Convention. The Declaration follows the filing of an international investment claim against Uruguay by Philip Morris Products (Switzerland) and related companies. The Declaration reaffirms the commitment of the 171 WHO FCTC Parties to implementation of the Convention and addresses the relationship between the WHO FCTC and international trade and investment agreements, particularly in the context of intellectual property rights. This article outlines the Request for Arbitration, sets out the Declaration and the broader normative context in which it arose before touching briefly on the implications of the Declaration.

How to Include Environmental Protection, Human Rights and Sustainability in International Investment Law?

2014 ◽  
Vol 15 (3-4) ◽  
pp. 612-644 ◽  
Author(s):  
Karsten Nowrot
Keyword(s):  
Public Interest ◽  
International Investment ◽  
Potential Importance ◽  
Policy Space ◽  
International Investment Law ◽  
Economic Issues ◽  
Present Context ◽  
Policy Shift ◽  
Investment Law ◽  
Investment Agreements

The analysis takes a closer look at the options available to include non-economic issues in the provisions of something like an emerging eu model bit. The first part addresses some underlying reasons for the more recently visible policy shift in international investment law. The subsequent parts are devoted to a discussion of three different categories of regulatory means aimed at incorporating broader public interest concerns into the normative framework of investment agreements. In this connection, the second part provides some thoughts on respective indirect (interpretative) approaches. Subsequently, an assessment will be given of various regulatory options available to explicitly secure an appropriate policy space for host states based on so far rather uncommon stipulations in investment agreements. The fourth section discusses the competence of the treaty parties to exercise interpretative authority over their bits and the potential importance of this approach in the present context.

scholarly journals Drafting and Interpreting International Investment Agreements from a Sustainable Development Perspective

2015 ◽  
Vol 3 (1) ◽  
pp. 59
Author(s):  
Claudia Salgado Levy
Keyword(s):  
Sustainable Development ◽  
New Technologies ◽  
International Investment ◽  
Policy Space ◽  
International Investment Law ◽  
Investment Arbitration ◽  
International Investment Agreements ◽  
Development Goals ◽  
Environmental Measures ◽  
Investment Agreements

The proliferation of International Investment Agreements (IIAs) and treaty-based investment arbitration has raised concerns over the extent to which IIAs are actually fair and are able to balance the interests of foreign investors and States. The strong protections afforded by IIAs to investors may restrict the host State’s ability to regulate for the public interest and potentially allow newly adopted public policies to be subject to compensation. Several economic transactions that have qualified as investments for treaty protection have fallen short of contributing to the host State’s sustainable development. They have not added to the generation of employment and growth, the transfer of new technologies and knowledge or the strengthening of infrastructure. Nor have many of these economic transactions contributed to the home country’s development. Moreover, regulatory measures adopted with the aim of fostering sustainable development (ie environmental measures) have been successfully challenged by investors. In some cases tribunals have interpreted these measures as creeping or indirect expropriations, therefore requiring compensation. Both the lack of consideration for the host State’s interests under international investment law and the limitation to the State’s policy space have been perceived as having negative implications for the development of the country, and in particular for the adoption of sustainable policies. Though little empirical evidence exists, it has been suggested that investment arbitration is a threat to the adoption of public policy regulations and may even have a ‘chilling effect’ on them. A possible way forward is the negotiation of a new generation of investment treaties, as well as the renegotiation and revision of the existing ones. These changes are needed in order to balance the interests of States and investors and to incorporate innovative features in light of the necessary policy space that States require in order to foster sustainable development through the application of dynamic social and environmental norms and regulations. Another alternative is the adoption of interpretative approaches, which ultimately foster sustainable development goals. The preferred options are the contextual and dynamic interpretation of the intention of the contracting States, as well as the systemic integration of international rules and norms into investor-State disputes.

scholarly journals Sustainability Impact Assessments as Inputs and as Interpretative Aids in International Investment Law

2017 ◽  
Vol 18 (1) ◽  
pp. 163-199 ◽  
Author(s):  
Markus Gehring ◽  
Sean Stephenson ◽  
Marie-Claire Cordonier Segger
Keyword(s):  
International Investment ◽  
Negotiation Process ◽  
International Investment Law ◽  
Investment Treaty ◽  
Directorate General ◽  
Treaty Interpretation ◽  
Social Environmental ◽  
The Impact ◽  
Investment Agreements ◽  
Trade And Investment

Sustainability impact assessments (SIAs) act as bridges between trade and investment agreements and social, environmental and human considerations. They are relevant as inputs into the treaty negotiation process and as interpretive aids in investment treaty arbitration. As inputs, SIAs attempt to measure the impact of environmental, social, economic and human rights aspects of trade and investment agreements prior to and during a treaty’s negotiation. SIAs have been performed on all major negotiations in the EU since 1999, and will continue to be performed under its investment competence. Case studies in this article demonstrate how SIAs may include climate change. Additionally, legal recommendations are offered which, if adopted by the Directorate General for Trade, should increase the effectiveness of SIAs. As interpretive aids, SIAs may be key references in treaty interpretation arguments in light of increased environment and development related investment disputes and focus on sustainable development policy space.

23. International Investment Law

2018 ◽  
Author(s):  
Surya P Subedi
Keyword(s):  
International Trade ◽  
International Law ◽  
International Investment ◽  
International Regulation ◽  
International Investment Law ◽  
Trade Law ◽  
International Trade Law ◽  
Finance Law ◽  
Recent Trends ◽  
Investment Law

This chapter discusses the development and current state of international investment law, which encompasses international finance law, international trade law, international investment law, and regional economic trade agreements. Recent progressions in the area of international financial law, international trade law, and investment law demonstrate that other areas of international regulation have a decisive influence on international investment law. Moreover, international investment law is more increasingly focused on development concerns. International investment law is currently going through an exciting phase in its development. It has now become one of the fastest changing areas of international law with exciting and far-reaching implications for both investment-receiving and investment-exporting countries, thanks to enterprising claimants and innovative interpretations and expansive approaches adopted by international investment tribunals. This chapter seeks to capture the law and the recent trends in both State practice and jurisprudence in this area of international law.

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