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McGrady, Benn --- "Implications of Ongoing Trade and Investment Disputes Concerning Tobacco: Philip Morris v Uruguay" [2012] ELECD 813; in Voon, Tania; Mitchell, D. Andrew; Liberman, Jonathan; Ayres, Glyn (eds), "Public Health and Plain Packaging of Cigarettes" (Edward Elgar Publishing, 2012)

Book Title: Public Health and Plain Packaging of Cigarettes

Editor(s): Voon, Tania; Mitchell, D. Andrew; Liberman, Jonathan; Ayres, Glyn

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9780857939425

Section: Chapter 8

Section Title: Implications of Ongoing Trade and Investment Disputes Concerning Tobacco: Philip Morris v Uruguay

Author(s): McGrady, Benn

Number of pages: 27

Extract:

8. Implications of ongoing trade and
investment disputes concerning
tobacco: Philip Morris v Uruguay
Benn McGrady

I. INTRODUCTION

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 treat-
ment 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 affili-
ate 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 Australia­Hong 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

...