How 'healthy' are the investment treaties of South Asian countries: an empirical study of public health provisions in South Asian countries' BITs and FTA investment chapters

The South Asian region, while holding a prominent position in terms of attracting foreign direct investment, has been conspicuously less visible on the radar of international investment law (IIL) scholarship. In the rapidly shifting plane of IIL considering the recent backlash against the investor–State dispute settlement (ISDS) system, South Asian countries are certainly set to play a critical role, if not immediately in the near future, in shaping the contours of IIL. This article is an attempt to contribute to the body of emerging IIL scholarship centred on South Asia. These countries, while simultaneously being preferred as an important investment destination by foreign investors, are also marred by an abysmal public health scenario. In light of the increasing interface between IIL and public health, as evidenced by the Philip Morris cases and the Eli Lilly case, this article undertakes an empirical study of the public health-related provisions present in the bilateral investment treaties (BITs) and the free trade agreement (FTA) investment chapters of the South Asian countries, in order to assess the regulatory latitude that these countries would have if any public health-related measure were challenged under ISDS. The article concludes by finding that the number of public health-related provisions in the BITs of South Asian countries is considerably low. Thus, these countries should include public health provisions in their BITs and FTA investment chapters so as to enjoy greater control over their public health-related regulatory measures when challenged by foreign investors using ISDS.