A chilling effect? Are international investment agreements hindering government’s regulatory autonomy?

The plain packaging of tobacco products, the disposal of hazardous waste and the management of toxic chemicals are all areas of health, safety and environmental (HSE) regulations which have faced legal challenges by private corporations under international investment agreements (IIAs) using the unique investor state dispute settlement (ISDS) provisions.This article exploresthe contention that these provisions are having a chilling impact on the regulatory autonomy of governments, and argues against that thesis, showing how in the Canadian context, despite numerous NAFTA Chapter 11 challenges, regulators are generally not aware of the existence of IIAs or of the potential threat of an ISDS challenge and rarely take them into account when developing regulations.