Public Health and Plain Packaging of Cigarettes

Public Health and Plain Packaging of Cigarettes

Legal Issues

Edited by Tania Voon, Andrew D. Mitchell, Jonathan Liberman and Glyn Ayres

The book offers an in-depth exploration of relevant domestic and international legal questions in fields such as intellectual property, constitutional law, health, trade and investment. The authors’ analysis sheds light on broader questions relating to the capacity of governments to regulate tobacco products and the tobacco industry, and to regulate in the interests of public health more generally. The answers to these questions are of vital interest not only to Australia but also to the international community, with states’ regulatory sovereignty increasingly being challenged in local and international courts and tribunals.

Chapter 8: Implications of Ongoing Trade and Investment Disputes Concerning Tobacco: Philip Morris v Uruguay

Benn McGrady

Subjects: law - academic, health law, intellectual property law, international economic law, trade law, international investment law, public international law


Benn McGrady INTRODUCTION I. This chapter examines the implications of ongoing trade and investment disputes for plain packaging of tobacco products. As earlier chapters have detailed, challenges under international law could arise under the World Trade Organization (‘WTO’) covered agreements, or under international investment agreements (‘IIAs’). In the WTO context, earlier chapters identified possible claims under the Agreement on Trade-Related Aspects of Intellectual Property Rights1 (‘TRIPS Agreement’) and the Agreement on Technical Barriers to Trade2 (‘TBT Agreement’). In the context of IIAs, earlier chapters identified the possibility that a tobacco company might seek compensation for indirect expropriation of an investment or on the basis that plain packaging violates rules governing fair and equitable treatment of foreign investors. In this context, there is one direct legal challenge to plain packaging that is ongoing. In June 2011, Philip Morris Asia Limited initiated a challenge to Australia’s planned implementation of plain packaging measures. The company, which is the Hong Kong-based owner of the Australian affiliate Philip Morris Limited, has served a notice of claim on the Australian government. The notice of claim states the company’s intention to pursue legal action under the Australia–Hong Kong bilateral investment treaty 1 Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995) annex 1C. 2 Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995) annex 1A. 173 VOON 9780857939425 PRINT.indd 173...

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