Public Health Regulation: The Impact of Intersections between Trade & Investment Treaties in Asia

Abstract

There has been an explosive growth of free trade agreements (FTAs) in recent years. The World Trade Report 2011 of the World Trade Organization (WTO) shows Asian members to be among the most active in signing preferential trade agreements. This unprecedented growth has attracted much academic and policy discussion on aspects such as their effects on trade liberalization, problems raised by specific trade and investment provisions, dispute settlement, and concerns over “regionalism”. Like such areas, public health regulation has been significantly affected by such treaties. FTAs, together with bilateral investment treaties (BITs), are rapidly forming a source of intersecting state obligations that have an impact on the regulation of public health and related intellectual property rights (IPRs) (such as in patents for pharmaceuticals) in Asian states. The impact is wide-ranging and profound, affecting access to medicines, rights and obligations of IPR owners and enforcers, rights of investors (such as producers of pharmaceutical and tobacco products), and the relationship between these agreements and other health-related treaties. An examination of specific issues and claims (potential and actual) in the area of public health is needed to better appreciate the impact of such obligations. This discussion raises the following questions: - How do intersecting aspects of FTAs and BITs affect public health regulation in Asia? - Have the flexibilities that exist in WTO affecting health regulation been significantly reduced by recent FTAs and/or BITs signed by Asian states? - The role of treaty exceptions in recent Asian FTAs and BITs in safeguarding regulatory discretion in public health. This paper will examine the issues and examples of recent provisions critically from an Asian perspective, to provide a springboard for further discourse in this important area.