Time to Quit? Assessing International Investment Claims against Plain Tobacco Packaging in Australia

Abstract

protection agreements in force: 13 21 bilateral investment treaties ('BITs'), 14 and five preferential trade agreements ('PTAs') containing investment provisions. 15 An 13 Australia's bilateral investment treaty with Chile has been superseded by the investment chapter in Australia's preferential trade agreement with Chile: Commonwealth,

International investment agreements and public health: neutralizing a threat through treaty drafting

“…This will make it more difficult for Australia and Uruguay to defend their tobacco packaging measures designed to curtail the uptake of smoking, and for Canada to defend its interpretation of the criteria required for the patentability of an invention. 23,[25][26][27] Moreover, international investment arbitration is not based on a system of precedents. Hence tribunals are not bound by prior interpretations or decisions.…”

Plain packaging: an opportunity for improved international policy coherence?

“…Recent legal scholarship strongly suggests that Australia's packaging and labeling legislation is on firm legal ground (Mitchell, 2010;Voon and Mitchell, 2011;Mitchell and Studdert, 2012). For example, international agreements, such as TRIPS, do not oblige WTO Members to permit trademark rights holders to use their trademarks rather they ensure the protection and registration of trademarks (Mitchell, 2010).…”

Forum Selection in TradeLitigation

“…Accordingly, the traditional approach in UNCITRAL arbitrations would be to conclude that a relevant investment justifying jurisdiction exists simply because the A. E. Appleton -Forum Selection in Trade Litigation investor can demonstrate its ownership or control of one of the assets enumerated in the BIT [bilateral investment treaty] definition of investment (here, shares, intellectual property, and goodwill). 279 They further note, "On this basis, the debate surrounding the meaning of 'investment' in the ICSID Convention does not arise." 280 They conclude that Australia only has a 'reasonably modest' likelihood of persuading an arbitral tribunal that Philip Morris Asia Limited did not make an investment within the terms of the applicable bilateral investment treaty (BIT).…”