國際投資仲裁程序與公共衛生之關聯：以菸品控制爭端為例

International Investment Arbitration Proceedings and Public Health: Tobacco Control Dispute as an Example

近年來，國際投資協定與外國投資人訴諸「投資人與國家」仲裁之案例有明顯增加的趨勢。投資仲裁涉及地主國及廣泛的公共政策或措施，故本質上具有公共利益的重要層面。然而，適用於投資仲裁之程序規則多係參照或其設計本在適用於私人間的國際商務仲裁。因此，投資仲裁程序能否反映公共利益之需求，應為重要的課題。在公共衛生領域，菸草公司Philip Morris利用投資仲裁挑戰若干國家其菸品控制措施之作為受到各界高度的矚目。其亦顯示出未來投資仲裁庭或將承擔更重要的角色，影響菸品投資保護與菸品控制法律體系之可能發展。為檢視投資仲裁程序與公共衛生政策之關聯性，本文將以菸品控制爭端為例，擇要探討與公共利益較為相關之投資仲裁程序議題，例如透明化與第三方參與、仲裁判斷之法律不確定風險、撤銷違法措施以及仲裁判斷之執行等。

There has been a rising trend in the numbers of international investment agreements and investor-state arbitrations initiated by foreign investors recently. Given the host state would always be the disputing party as well as broader public policy and measure would be involved, treaty-based investment arbitration is generally deemed as having important public interest dimension. In spite of this, most arbitration rules used in the investment arbitrations are originally modelled on or mainly applied to the private-private international commercial arbitration. Thus, whether and to what extent the investment arbitration rules would reflect the need of public interest might be a point worthy of consideration. In the public health realm, the tobacco company Philip Morris's recourse to investor-state arbitration to challenge the tobacco control measures adopted by some countries has attracted wide attention. It seems that the future investment tribunal would possibly assume an increasing role in influencing the later development of different treaty systems between the protection of tobacco investment and tobacco control. In order to look at how investment arbitration proceedings would influence public health policy, taking tobacco control dispute as an example, this paper will discuss certain procedural aspects of investment arbitration which are of public interest relevance, such as transparency and third parties' participation, legal uncertainty of an arbitral award, the suspension of an unlawful measure and the enforcement of arbitral award.