In the loop: revaluing public health in international investment agreements

Old-generation treaties generally lacked reference to the State's right to protect public health, thus leaving arbitral tribunals with the task of balancing private and public interests in specific arbitrations. Since 2010, given the uncertainty raised by conflicting arbitral awards, States have gradually reaffirmed their right to take measures in the public interest. The COVID-19 pandemic has intensified this trend. This article examines post-pandemic treaty practice and highlights that, in reforming their treaties, States have not used a revolutionary approach; rather, they have incrementally combined provisions that had already been used in earlier treaties. In theory, in the absence of such provisions, the police powers doctrine and interpretive criteria can, and should, inform arbitral tribunals' reasoning, and enable them to reach an appropriate balance between private and public interests. In practice, however, the recalibration of international investment agreements can provide some direction to the parties and arbitral tribunals on how to concretely balance the private and public interests at stake. Reforms of this kind can stop States from leaving investor-State dispute settlement mechanisms, and save the system from collapsing. Scholars do not regard such clauses as a cure-all, as arbitral tribunals have interpreted such provisions narrowly, often making them meaningless. However, arbitral tribunals should see these clauses as feedback loops, interpret them in good faith, and give them effect. A fitting construction of these provisions thus represents an existential feature of international investment law.