Table 1 Types of health-related clauses included in the bilateral investment treaties (BITs) signed by Uruguay
From: Safeguarding health in bilateral investment treaties: the Uruguayan experience
Typology | Category of health-related clause | Type of health-related clause | Definition | BITs where the clause is included |
|---|---|---|---|---|
Defensive (shield-type) | Clause-specific clarifications | Health-related measures are not discriminatory to foreign investors | Health-related activities are excluded from the provisions of the BIT related to national treatment to foreign investors and most favoured nation | Germany (1987) |
Health-related measures are not performance requirements to foreign investors | Requirements for foreign investors to comply with certain behaviours in the health sector regarding the establishment, expansion, management, conduct, operation, sale or other disposition of an investment are not performance requirements | Mexico (2003), USA (2005), Chile (2010) | ||
Non-discriminatory health-related measures are not indirect expropriation | Explicitly recognizes that non-discriminatory health-related measures shall not be regarded as a form or indirect expropriation | USA (2005), India (2009), Korea (2009), Chile (2010), Japan (2015), United Arab Emirates (2018), Australia (2019), Turkey (2022) | ||
Exceptions | Health-related general exceptions to the dispositions of the BIT | The dispositions of the BIT shall not prevent a party from implementing non-discriminatory health measures | Canada (1997), Japan (2015), United Arab Emirates (2018), Australia (2019), Turkey (2022) | |
Health sector reservations | Activities related to the health sector are not included within the provisions of the BIT | Netherlands (1988), Switzerland (1988), Poland (1991), Canada (1997), Mexico (2003), Chile (2010), Japan (2015) | ||
Neutral | Preventing erosion of existing level of health protection | BIT objectives compatible with public health | The BIT specifies that its objectives should be compatible with public health | USA (2005), Korea (2009), Japan (2015), United Arab Emirates (2018), Australia (2019), Turkey (2022) |
Health-related measures shall not be relaxed | The BIT specifies that parties shall not encourage foreign investors by relaxing health-related measures | Japan (2015) | ||
Coordination across policy sectors | Health is included in the definition of specific laws | The definition of labour or environmental laws included in the BIT includes a specific reference to health | USA (2005) | |
Tribunals can appoint health experts | The BIT provides a procedure to allow the tribunal to appoint health experts in ISDS disputes | Mexico (2003), USA (2005), Chile (2010) |