Public Health and Investment Protection in the Context of the COVID-19 Pandemic—From the Sustainable Perspective of Exception Clauses
Round 1
Reviewer 1 Report
The paper has a theoretical approach to public health and investment protection in the context of the COVID-19 pandemic, from a sustainable perspective of exceptional clauses.
In the abstract and introduction it should be written more clearly what is the purpose of the paper.
The paper is written in the style of the humanities. I recommend that you better structure the parts of the paper and include a research methodology and the results obtained.
Below are some works that can help you restructure your content.
Hategan, V.-P. Promoting the Eco-Dialogue through Eco-Philosophy for Community. Sustainability 2021, 13, 4291. https://doi.org/10.3390/su13084291
Tabak, F.; Tziner, A.; Shkoler, O.; Rabenu, E. The Complexity of Heavy Work Investment (HWI): A Conceptual Integration and Review of Antecedents, Dimensions, and Outcomes. Sustainability 2021, 13, 7803. https://doi.org/10.3390/su13147803
Hagemann, T. (2021). Corporate Wealth Over Public Health? Assessing the Resilience of Developing Countries' COVID-19 Responses Against Investment Claims and the Implications for Future Public Health Crises. Assessing the Resilience of Developing Countries' COVID-19 Responses Against Investment Claims and the Implications for Future Public Health Crises (February 28, 2021). Forthcoming in: Pace International Law Review (PILR) Vol, 34.
In the conclusions section, the limits of the research and its future directions must be added.
Author Response
Response to Reviewer 1 Comments
Point 1: In the abstract and introduction it should be written more clearly what is the purpose of the paper.
Response 1: In abstract, we add “However, the public health exception clause is a general exception clause with uncertainty when investment arbitration takes place and investment arbitral tribunals interpret it. In the interna-tional society, sustainable development has gradually been recognized as a key principle in contemporary international law. Against this background , in the context of international in-vestment, it is appropriate for the host states to optimize the exception clauses in BITs or FTAs therebyand reducinge the risk of arbitration concerning the host state’s regulatory measures to protect the public from the pandemic.” to make the purpose of this paper more clear especially this paper can be citied by investment arbitral tribunals to interpret the public health exception clause.
In introduction, we cited works recommended by Reviewer 1 as below to illustrate that this paper intends to help host states to strengthen the legal basis of containing COVID by the public health exception clause :
Reference [6] Hagemann, T. Corporate Wealth Over Public Health? Assessing the Resilience of Developing Countries'COVID-19 Responses Against Investment Claims and the Implications for Future Public Health Crises. Pace Int’l L. Rev. 2021, 34, 25-56.
Point 2: I recommend that you better structure the parts of the paper and include a research methodology and the results obtained.
Response 2: In order to improve the structure of this paper, we first of all added 2.1 Overview of IIAs to make the structure more integrated. We also added 2.3.1. The Temporal Spread of Public Health Exception Clauses to make our public health and sustainability arguments more convincing. Both parts are helpful to a better structure. Regarding methodology, we employed statistical analysis in both parts and all data is from the UNCTAD database.
Point 3: In the conclusions section, the limits of the research and its future directions must be added.
Response 3: In the conclusions, we added the limits of the research and its future directions. It will help the host states to adopt public health policies appropriately by advocating an ecophilosophy for community. We also cited the recommended work in the conclusion of this paper:
Reference [71] Hategan, V.P. Promoting the Eco-Dialogue through Eco-Philosophy for Community. Sustainability 2021, 13, 4291.
Reviewer 2 Report
From my overview, I would say that the Article “Public Health and Investment Protection in the Context of the COVID-19 Pandemic - From the Sustainable Perspective of Exception Clauses” addresses a very important topic—one that has gained considerable which has been over interpreted in many newspapers with respect to the effect on the pandemic on global trade (and how trade can help mitigating some aspects of the pandemic). Although the Article is very well-written and richly referenced, a number of them will need to be updated before publication, as this is an area which is moving quite quickly. In summary, I think that there is a lot of good and publishable material in this proposal but I can only recommend publication subject to revisions.
- I found the policy issue at the heart of the paper important – i.e., the analysis of the determinants driving IPR in the new COVID-19 and how (and to what extent) they have changed the global investment landscape. However, I would encourage the authors to set out the ways in which this article differs from previous publications you have on this issue. I also found the survey of the existing empirical literature on the impact of and determinants of bilateral trade unconvincing.
- Some recent and important articles/books on IPR and international trade/economic norms) with respect to COVID-19 and international trade. This paper must engage adequately with recent literature on these issues
- Frederick M Abbott and Jerome H Reichman, ‘Facilitating Access to Cross-Border Supplies of Patented Pharmaceuticals: The Case of the COVID-19 Pandemic’ (2020) 23 (3) Journal of International Economic Law 535–561
- Prabhash Ranjan & Pushkar Anand (2020) Covid-19, India, and investor-State dispute settlement (ISDS): will India be able to defend its public health measures?, Asia Pacific Law Review, 28:1, 225-247, DOI: 10.1080/10192557.2020.1812255
- Julien Chaisse ‘Both Possible and Improbable-- Could Covid-19 Measures Give Rise to Investor-State Disputes?’ 97-184 (See https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3617748 )
- Gathii, James Thuo and Akinkugbe, Olabisi D. and Adebola, Titilayo and Mapefane, Nthope and Omiunu, Ohio, International Economic Law in the Global South and COVID-19 (May 18, 2020). Afronomics law Symposium on COVID-19 and International Economic Law in the Global South, 2020, available at http://dx.doi.org/10.2139/ssrn.3604313
- Julien Chaisse & Nilanjan Banik ‘Global Health Law & Governance Amidst the Pandemic: Evidence, Lessons, and Reforms’ (2020) 207-269 (See https://www.annalsofhealthlaw.com/annalsofhealthlaw/Store.action)
- Another minor critic is about the conclusion which, although good, could be improved. The conclusion should more explicitly 1) stress the importance of the thesis statement, 2) give the essay a sense of completeness, and 3) leave a final impression on the reader.
From my overview, I would say that the Article is well-written and adequately referenced. A number of them will need to be updated before publication, as this is an area which is moving quite quickly. A few others seem to be reshaped to be more consistent with the overall theme. In summary, I think that there is a lot of good and publishable material in this proposal so I recommend publication subject to revisions.
Author Response
Response to Reviewer 2 Comments
Point 1: I think that there is a lot of good and publishable material in this proposal but I can only recommend publication subject to revisions. Some recent and important articles/books on IPR and international trade/economic norms) with respect to COVID-19 and international trade. This paper must engage adequately with recent literature on these issues.
Response 1: We absolutely agree that the abundant latest literature should be incluede so that this paper is more significant to the future. We cited recommended papers as below:
Reference [9] Chaisse, J. Both Possible and Improbable – Could Covid-19 Measures Give Rise to Investor-State Disputes? Contemporary Asia Arbitration Journal 2020, 13, 99-184.
Reference [20] Chaisse, J.; Banik, N. Global Health Law & Governance Amidst the Pandemic Evidence, Lessons, and Reforms. Annals of Health Law and Life Sciences 2021, 30, 207-269.
Point 2: I would encourage the authors to set out the ways in which this article differs from previous publications you have on this issue. I also found the survey of the existing empirical literature on the impact of and determinants of bilateral trade unconvincing.
Response 2: In previous publications, there are no any statistical analysis on public health exception clause in the whole international investment treaty system. We first of all added 2.1 Overview of IIAs to make this paper more empirical. We also added 2.3.1. The Temporal Spread of Public Health Exception Clauses to make our public health and sustainability arguments more convincing. Regarding methodology, we employed statistical analysis in both parts and all data from the UNCTAD database to strengthen our arguments.
Point 3: Another minor critic is about the conclusion which, although good, could be improved. The conclusion should more explicitly 1) stress the importance of the thesis statement, 2) give the essay a sense of completeness, and 3) leave a final impression on the reader.
Response 3: In the conclusions, we added the limits of the research and its future directions to make the whole structure more integrated at final stage. It will help the host states to adopt public health policies appropriately by advocating an ecophilosophy for community, which is also a final impression on readers.
Round 2
Reviewer 1 Report
The paper is improved.
