Safeguarding health in bilateral investment treaties: the Uruguayan experience

Ares et al. Globalization and Health (2025) 21:28 https://doi.org/10.1186/s12992-025-01110-x Globalization and Health Open Access RESEARCH Safeguarding health in bilateral investment treaties: the Uruguayan experience Gastón Ares1*, Gerónimo Brunet2, Dori Patay3 and Anne-Marie Thow3 Abstract Background The proliferation of International Investment Agreements (IIAs), as the result of globalization, has been identified as one of the factors contributing to policy inertia or chill on meaningful public health policy action. Health safeguards, i.e., specific clauses to protect the State’s right to regulate, have been increasingly included in IIAs to protect health policy. However, an in-depth understanding of the processes involved in the diffusion of health safeguards in IIAs globally and the factors acting as barriers and facilitators for their uptake is still lacking. In this context, the present study intends to fill this research gap by analysing the uptake of health safeguards in the context of Uruguay, a developing Latin American country. The objectives were to: (i) examine the evolution of the inclusion of health safeguards in the Bilateral Investment Treaties (BITs) signed by Uruguay until 2024, (ii) analyse how Uruguay has approached BITs after the Philip Morris ISDS case, (iii) explore Uruguayan stakeholders’ perspectives on the inclusion of health safeguards in BITs, (iv) identify barriers and facilitators for the uptake of health safeguards in the BITs. Results Documentary analysis of the BITs signed by Uruguay showed an ascending trend in the inclusion of health safeguards, reaching 100% since 2010. Interviews with key stakeholders suggested that health safeguards diffused from abroad through transnational transfer networks. While Uruguay has not faced challenges in including health safeguards in recent BITs, the renegotiation of old generation BIT agreements with developed countries has proven to be difficult. A wide range of factors that act as facilitators and barriers for the inclusion for health safeguards in the BITs were identified, which were related to both the national and intergovernmental levels. Conclusions Results contribute to the understanding of the factors that influence the evolution of the interface between investment agreements and public health policy by analysing the adoption of health safeguards in BITs. Strong recommendations from international organizations to renegotiate old generation BITs may contribute to overcoming the existing power dynamics and support developing countries in the protection of their regulatory space. Keywords International investment agreements, Right to regulate, Public health, Public health exception clauses, Foreign investment, Health safeguards *Correspondence: Gastón Ares 1 Instituto Polo Tecnológico de Pando, Facultad de Química, Universidad de la República, Pando, Uruguay 2 Espacio Interdisciplinario, Universidad de la República, Montevideo, Uruguay 3 Faculty of Medicine and Health, Sydney School of Public Health, Leeder Centre for Health Policy, Economics, and Data, The University of Sydney, Sydney, NSW, Australia © The Author(s) 2025. Open Access This article is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License, which permits any non-commercial use, sharing, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons licence, and indicate if you modified the licensed material. You do not have permission under this licence to share adapted material derived from this article or parts of it. The images or other third party material in this article are included in the article’s Creative Commons licence, unless indicated otherwise in a credit line to the material. If material is not included in the article’s Creative Commons licence and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder. To view a copy of this licence, visit http://creati vecommons.org/licenses/by-nc-nd/4.0/. Ares et al. Globalization and Health (2025) 21:28 Background Addressing the commercial determinants of health, defined as “strategies and approaches used by the private sector to promote products and choices that are detrimental to health” [1], through regulatory actions has been identified as a priority to achieve the sustainable development goals [2]. However, the implementation of transformative and effective policies remains scarce worldwide [3]. The proliferation of International Investment Agreements (IIAs), as the result of globalization, has been identified as one of the factors contributing to this policy inertia or chill on meaningful public health policy action [4–7]. Bilateral investment treaties (BITs), the most common form of IIAs, are treaties signed by two States to promote and protect cross-border investments [8]. They provide a series of protections to foreign investors under international law, including fair and equitable treatment and the right to obtain compensation in case of direct and indirect expropriation [9]. A key feature of most BITs is the inclusion of an Investor-State dispute settlement (ISDS) mechanism which enables investors to use a form of private international arbitration to pursue compensation from States if governments implement measures that infringe the dispositions of the treaties [10]. This mechanism has been used to challenge health policy measures globally, such as taxation, health insurance, water provision, environmental protection, and anti-tobacco regulations [11, 12]. The BITs signed in the 90s and beginning of 2000s, usually regarded as old generation BITs, included few provisions to protect the states’ regulatory and policy space, i.e., their ability to regulate, the scope and content of the policies and the mechanisms they can use to design and implement policies for achieving certain objective [13]. Three key mechanisms explain this potential negative effect of BITs. First, IIAs can limit the range of policy options available to governments for protecting and promoting health [14]. For example, shifting from public to private provision of health care services as a consequence of the implementation of a BIT can increase inequities with respect to access [15]. Further, provisions protecting patents for medicines can weaken national pharmaceutical policies [16]. Second, BITs can generate regulatory chill: out of fear of capital fright or ISDS cases, governments can alter, modify, or fail to enact effective public health policies [4, 5, 17]. This effect can extend beyond the country directly involved in an ISDS case, as other governments may delay or avoid introducing health policies while awaiting the outcome of similar cases elsewhere [18]. Third, ISDS mechanisms can also enable a high level of industry in (...truncated)