Despite the claims of Andrew Robb, Minister for Trade and Investment, there is no exemption for public health from ISDS litigation. Article 9.15 of the investment chapter explicitly makes such matters dependent on their conformity with the TPP itself:
"Nothing in this Chapter shall be construed to prevent a Party from adopting, maintaining or enforcing any measure otherwise consistent with this Chapter that it considers appropriate to ensure that investment activity in its territory is undertaken in a manner sensitive to environmental, health or other regulatory objectives."That is, unless Australian health regulations are consistent with the TPP, they can be subject to a lawsuit brought about by a multinational corporation under ISDS.
The result will be that corporations will pursue litigation and add to their statement of claims that the policy change they are seeking compensation for is inconsistent with the TPP.
Australian policy will be further limited by the annex on expropriation, meant as a guide to what can be the subject of ISDS processes:
"Non-discriminatory regulatory actions by a Party that are designed and applied to protect legitimate public welfare objectives, such as public health, safety and the environment, do not constitute indirect expropriations, except in rare circumstances."
