VJIL Symposium: Questions about the Public Law Approach to International Investment Law

VJIL Symposium: Questions about the Public Law Approach to International Investment Law

[Anthea Roberts is currently the Visiting Professor of Law and John Harvey Gregory Lecturer on World Organization at Harvard Law School. She also holds the position of Lecturer in Law, Department of Law, London School of Economics and Political Science.] This post is part of the Virginia Journal of International Law Symposium, Volume 52, Issues 1 and 2. Other posts in this series can be found in the related posts below. Thank you very much to Opinio Juris for hosting this discussion and to the Virginia Journal of International Law for inviting me to participate. Investment treaty arbitration has typically been viewed as a field that marries public international law (as a matter of substance) with international commercial arbitration (as a matter of procedure). During the 2000s, however, a number of authors - including Gus Van Harten (2007), David Schneiderman (2008), Santiago Montt (2009) and Stephen Schill (2010) - have argued that investment treaty arbitration should be reconceptualized as a form of public law because it performs a function that is akin to international judicial review. Public law approaches have played a key role in legitimacy critiques of the investment treaty system. Some authors, such as Van Harten and Schneiderman, have used the public law approach to argue for the system to be fundamentally overhauled by, for instance, proposing that ad hoc investment tribunals be replaced with a standing investment court. Others authors, such as Montt and Schill, argue that many of the legitimacy critiques leveled against investment treaty arbitration could be countered by an expansion of public law thinking within the existing structure of investment treaty arbitration. In thinking about these public law approaches, some questions continually recur in my mind. I am grateful for this opportunity to pose some of them to Schill: * What motivates some scholars to use the public law approach to suggest fundamentally revising the system and others to suggest refining the system from within? If most investment arbitrations continue to be heard by arbitrators with a primary background in public international law or international commercial arbitration, how effective can we expect the public law approach to be in revamping the system from the inside? Can some public law changes be affected only by a radical revision of the system? If so, what are the limits of Schill's more moderate approach? * Public law principles often seem to be drawn from North American and Western European states, such as the USA, Canada, England, Germany and France. To what extent does the public law approach assume that the respondent state is robustly democratic? How do principles like deference and standards of review apply when dealing with non-democratic states? Could this result in a two-tiered approach with considerable deference being granted to established democracies and little deference being granted to non-democracies? If so, would this reinforce some of the North-South critiques that have plagued investment protection in the past?

VJIL Symposium: Introducing Stephan W. Schill’s “Enhancing International Investment Law’s Legitimacy”

[Stephan W. Schill is a Senior Research Fellow at the Max Planck Institute for Comparative Public Law and International Law.] This post is part of the Virginia Journal of International Law Symposium, Volume 52, Issues 1 and 2. Other posts in this series can be found in the related posts below. I am grateful for the opportunity to present, on Opinio Juris, my Virginia Journal of International Law Article – “Enhancing International Investment Law’s Legitimacy: Conceptual and Methodological Foundations of a New Public Law Approach.” It is connected to a book project I edited and published with Oxford University Press in 2010 on International Investment Law and Comparative Public Law. The Article, as well as the book, proposes a new conceptual and methodological approach: to think about international investment law and investor-state arbitration as a public law discipline and to draw on the methods, concepts, and insights of comparative public law in responding to the concerns increasingly often raised about investment law. Often couched as a “legitimacy crisis,” these concerns predominantly stem from the perception that investment law and investor-state arbitration threaten domestic public law values, including democracy and the rule of law, because party-appointed arbitrators, not democratically-legitimated courts, review government acts and actively craft the substantive standards of investment protection. In my Article, I acknowledge the validity of the concerns raised but suggest system-internal responses that safeguard the considerable advantages of the current system of investment protection over both domestic solutions and an interstate system of dispute settlement like under the WTO. In my Article, I suggest that, short of radical institutional reforms, much of the criticism of investment law can be countered by a paradigm shift within the mainstream of international investment law. First, those involved in investment arbitration should break with the predominant self-understanding that we operate here in a sub-discipline of international commercial law and arbitration where responsiveness to the will of individual parties to arbitrations is key. Instead, we have to realize and recognize the considerable governance impact the field has on state-market relations and government behavior more generally. This requires accepting the public law nature of the system, which also explains why questions of legitimacy and calls for more transparency and accountability abound.

VJIL Symposium: Response to Commentary on Medical Tourism, Access to Health Care, and Global Justice

[I. Glenn Cohen is an Assistant Professor of Law and the Co-Director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School.] This post is part of the Virginia Journal of International Law Symposium, Volume 52, Issues 1 and 2. Other posts in this series can be found in the related posts below. I have relied on the work of each of these commentators and think of them as scholarly partners, so I am very grateful for their kind words and their comments on my piece. I will respond to them collectively, under two headings. Missing Evidence and Burdens of Proof: As Snyder, Crooks and Cortez emphasize, empirical evidence on the effects of medical tourism on access to health care by the destination country poor, as with most aspects of medical tourism, is largely unavailable, and what is available is often not rigorous. As Crooks and Snyder put it “[w]ithout more data on the impacts of specific forms of medical tourism in particular communities, providing action-guiding, normatively-informed analyses of medical tourism will be challenging.” While their own excellent work aims to generate such empirical data, as they recognize, we are still a long way off. The question is how to proceed in the interim? I try to advance the ball in my article through by generating conclusions that should follow if we can demonstrate that medical tourism has negative effects, and specifying six triggering conditions under which that conclusion seems likely. Chen and Flood misread me when they object to the idea (they ascribe to me) that “all six conditions laid out by Cohen must be satisfied to conclude that medical tourism undermines health access in the destination country.” Instead as I write on page 13 of my article: “In countries where the triggering conditions all obtain, one would expect medical tourism to cause some diminution in access to health care for the destination country's poorest due to medical tourism; as fewer factors obtain, this becomes less likely,” so we are actually in agreement. Chen and Flood do actually disagree with me about the burden to justify regulatory action, writing that “[t]here is an inherent bias in Cohen’s framework in that the burden seemingly rests on opponents of medical tourism to establish its adverse effects rather than vice versa.” My priors, similar to Cortez’s, is that where there are willing providers of services (destination country physicians and facilities) and willing consumers (home country patients, insurers, governments) pursuing an ordinarily morally unproblematic activity (providing medical services) involving voluntary transactions, the proponents of introducing new regulatory interventions should come forward with evidence showing a need to act. I would say the same domestically: we legislate to solve problems. That said, this disagreement is not all that important for two reasons: (1) I and the other commentators are in favor of doing the research needed to answer the question of what medical tourism’s effects are, such that we hope to reach an actual answer to this question rather than having to decide the matter on a kind of “summary judgment” where the mover’s burden may prove crucial; (2) the vast bulk of my Article proceeds on the assumption that the evidence for the negative effects is obtained and asks what should follow.

VJIL Symposium: Commentary on Medical Tourism, Access to Health Care, and Global Justice

[Jeremy Snyder is an Assistant Professor in the Faculty of Health Sciences at Simon Fraser University; Valorie A. Crooks is an Associate Professor in the Department of Geography at Simon Fraser University.] This post is part of the Virginia Journal of International Law Symposium, Volume 52, Issues 1 and 2. Other posts in this series can be found in the related posts below. In his article “Medical Tourism, Access to Health Care, and Global Justice,” Glenn Cohen provides an excellent discussion of the responsibilities of states for responding to and managing the potential negative consequences of medical tourism. Cohen gives an overview of canonical accounts of global justice and their implications for state responsibility, helpfully demonstrating that different accounts of justice will provide different answers to questions of responsibility. In this way, Cohen’s article makes the case for continued research on theories of global justice and their implications for global health practices like medical tourism. Cohen’s article faces a limitation shared by others conducting research on the impacts of medical tourism, a global health practice that, while not new, has expanded greatly in scope and visibility in recent years. Little trustworthy evidence is available about medical tourism patient flows or the impacts of this practice on health equity, health human resources, patient health and safety, and the spread of infectious disease. While descriptors of patient flows are available, they vary greatly and have been criticized for their inaccuracy. These problems are compounded by differing definitions of medical tourism and methods for quantifying its impacts. While we applaud Cohen’s work in advancing understanding of the implications of accounts of global justice for assigning responsibilities to states, this project is confounded by an absence of reliable empirical data. As a result, Cohen and others are frequently relegated to making statements of this sort: ‘If medical tourism is harmful, then x; however, if medical tourism is beneficial, then y.’ Without more data on the impacts of specific forms of medical tourism in particular communities, providing action-guiding, normatively-informed analyses of medical tourism will be challenging. New empirical research into the effects of medical tourism is emerging, which will help to increase the effectiveness of theory-driven research on this issue. It is important that this new work be informed and guided by theory-driven research like Cohen’s. This is because medical tourism is an enormously complex global health practice with myriad different impacts in destination and patients’ home countries that require careful consideration. Numerous stakeholders are involved in this practice, including citizens, government officials, health workers in destination and patients’ home countries, patients themselves and their support networks, medical tourism facilitators, and medical tourism providers and investors. The benefit of well-developed, theory-driven accounts of the moral and legal landscape of medical tourism is that they can help indicate which potential impacts of this practice, for which stakeholders, and in which environments are most pressing to explore empirically. The resources available to provide empirical insights on the ethical and legal dimensions of medical tourism are limited, and without guidance on prioritizing research questions these resources risk being wasted.

VJIL Symposium: Which Theory of Global Justice Best Accommodates the Uncertainties of Medical Tourism?

[Nathan Cortez is an Assistant Professor of Law at SMU Dedman School of Law.] This post is part of the Virginia Journal of International Law Symposium, Volume 52, Issues 1 and 2. Other posts in this series can be found in the related posts below. Thanks to the Virginia Journal of International Law for inviting me to comment on Glenn Cohen’s important article “Medical Tourism, Access to Health Care, and Global Justice.” Like the other contributors, medical tourism is a primary research focus of mine. Glenn’s right: the scholarship is undertheorized (p. 9). His article admirably initiates a dialogue between theory and its application. On that criterion, his article is both ambitious and modest - ambitious in testing the grand theories of Global Justice, and modest in confronting just one of the cascading questions that medical tourism raises: What should we do if medical tourism decreases access to care for destination country residents? Glenn evaluates three competing theories: cosmopolitan; statist; and intermediate. He prefers the intermediate theories of Joshua Cohen, Charles Sabel, Norman Daniels, and Thomas Pogge, which avoid the paralyzing moral obligations imposed by cosmopolitan theories but recognize that we probably owe more than what statist theories require. (Indeed, the statist theories limiting our obligations domestically seem quaint given the topic - a sprawling global trade in medicine.) But before engaging these theories, Glenn first addresses the empirical question - Does medical tourism really diminish access to care locally? (pp. 9-14) We just don’t know. Most of us have a strong intuition that the answer is yes. But as Glenn notes, our evidence is anecdotal, uncertain. Indeed, the lack of data is a persistent frustration for scholars in this area. As such, my inclination was to evaluate the Global Justice theories on how well they accommodate this reality. Glenn prefers the intermediate theories in part because the duties they impose are triggered by causation - if medical tourism decreases access to care locally, then certain obligations follow. But that causal observation requires data. The cosmopolitan utilitarianism of Mills and Bentham (pp. 18-19), also requires empirical information in the form of welfare measurements (e.g., “Does medical tourism increase the utility of uninsured Americans more than it decreases the utility of poor patients in India?” and countless other calculations). Likewise, the cosmopolitan sufficientarianism of Amartya Sen and Martha Nussbaum requires us to identify some minimum threshold below which we shouldn’t let local residents fall. But what’s the threshold?

VJIL Symposium: The Importance of Equity – A Response to Glenn Cohen

[Colleen M. Flood is the Canada Research Chair in Health Law and Policy at the University of Toronto Faculty of Law; Y.Y. Brandon Chen is a doctoral candidate at the University of Toronto.] This post is part of the Virginia Journal of International Law Symposium, Volume 52, Issues 1 and 2. Other posts in this series can be found in the related posts below. In this thought-provoking article, Cohen proposes a six-prong framework to assess whether medical tourism diminishes health care access in destination countries. This kind of theoretical contribution is extremely important to frame public debates, and ultimately inform legal and policy responses. In what follows, we outline four challenges to Cohen's framework and argue that equity in the distribution of health resources should be fulsomely considered in any discussion of medical tourism. First, medical tourism engenders concerns about both health access and health equity, particularly when occurring in developing countries; Cohen's framework addresses the former but neglects the latter. For instance, even assuming that health services provided to medical tourists originate from fresh investments that were not previously available, and therefore health access for local patients would have theoretically stayed the same, there remains the question of why patients from well-resourced developed countries – however sympathetic their personal circumstances may be – should be the primary beneficiaries of these resources rather than patients in the developing world. The inequity between foreign and local patients is further accentuated if a substantial amount of these fresh resources is devoted to providing medical tourists with perquisites above and beyond usual standard of care that are unavailable to most destination country residents. We argue that such equity considerations per se render medical tourism problematic. Second, there is an inherent bias in Cohen's framework in that the burden seemingly rests on opponents of medical tourism to establish its adverse effects rather than vice versa. Due to lack of significant statistical evidence to-date confirming medical tourism's threat to health access in destination countries, those with concerns about medical tourism will inevitably fail to satisfy Cohen's test. However, we could arguably start instead with the assumption that medical tourism will likely have adverse equity impacts. In this case, if the evidentiary burden was upon supporters of medical tourism to dispel equity concerns, they too would face difficulties with a sparse evidentiary base.

VJIL Symposium: Introducing Medical Tourism, Access to Health Care, and Global Justice

[I. Glenn Cohen is an Assistant Professor of Law and the Co-Director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School.] This post is part of the Virginia Journal of International Law Symposium, Volume 52, Issues 1 and 2. Other posts in this series can be found in the related posts below. First, I would like to thank Opinio Juris for hosting this discussion on my recent Article in the Virginia Journal of International Law. Medical tourism--the travel of patients from one (the “home”) country to another (the “destination”) country for medical treatment--represents a growing business. A number of authors have raised the concern that medical tourism reduces access to health care for the destination country's poor and suggested that home country governments or international bodies have obligations to curb medical tourism or mitigate its negative effects when they occur. This Article is the first to comprehensively examine both the question of whether this negative effect on access to health care occurs for the destination country's poor, and the normative question of the home country and international bodies' obligations if it does occur. I begin in Part I by describing and distinguishing medical tourism by individuals purchasing care out of pocket from those whose use is prompted by insurers and governments. I then distinguish concerns about medical tourism's effect on health care access in the destination country--the focus of this Article--from other concerns with medical tourism that I and others have discussed elsewhere In Part II I discuss the empirical claim and show that despite the expressions of concern of several prominent scholars and policymakers, there currently exists little empirical evidence that suggests medical tourism has adverse effects on health care access in destination countries. Nevertheless, both as a grounding for what follows and as an attempt to help formulate an empirical research project, I discuss six possible triggering conditions through which we would expect medical tourism to reduce access for the poor in destination countries: (1) The health care services consumed by medical tourists come from those that would otherwise have been available to the destination country poor; (2) Health care providers are “captured” by the medical tourist patient population, rather than serving some tourist clientele and some of the existing population; (3) The supply of health care professionals, facilities, and technologies in the destination country is inelastic; (4) The positive effects of medical tourism in counteracting the “brain drain” of health care practitioners to foreign countries are outweighed by the negative effects of medical tourism on the availability of health care resources; (5) Medical tourism prompts destination country governments to redirect resources away from basic health care services in a way that outweighs positive health care spillovers; (6) Profits from the medical tourism industry are unlikely to “trickle down.”