Australia Wins Plain Packaging Investor-State Dispute With Philip Morris Asia
Monday 21 December 2015 @ 11.28 a.m. | Legal Research
Australia has successfully defeated a legal challenge over its plain packaging laws by tobacco company Philip Morris Asia. The case was being heard by a specially constituted tribunal in Singapore under the “investor-state dispute settlement provisions” (the ISDS provisions) in Australia’s 1983 treaty with Hong Kong. According to media reports, the tribunal has unanimously upheld Australia’s arguments that the tribunal does not have jurisdiction to hear the case.
In a media release, Philip Morris strongly criticised the decision, with senior vice president Marc Firestone saying:
"There is nothing in today's outcome that addresses, let alone validates, plain packaging in Australia or anywhere else…. It is regrettable that the outcome hinged entirely on a procedural issue that Australia chose to advocate, instead of confronting head-on the merits of whether plain packaging is legal or even works."
The Minister for Rural Health, Fiona Nash, told the Sydney Morning Herald:
"We welcome the unanimous decision by the tribunal agreeing with Australia's position that it has no jurisdiction to hear Philip Morris' claim… Smoking does untold harm to Australians, causing deaths from cancer, lung and heart disease, and hurting families. The Coalition government has powered ahead with plain packaging and invested in reducing smoking rates across the board."
The Public Health Association of Australia told The Guardian Australian that the decision was “the best Christmas present for public health nationally and internationally”:
“Smoking in Australia is falling in adults, in children and by tobacco volume sales… Now the tobacco companies have lost another crucial legal bid to stop this life-saving measure. The message is loud and clear – plain packaging works, and it is here to stay.”
The actual decision has not been publicly released, as the Sydney Morning Herald noted:
“The confidentiality protocol governing the arbitration means that the substance of the decision cannot be published at this stage. The body responsible for the arbitration - the Permanent Court of Arbitration - will publish the decision on its website once issues regarding confidentiality have been resolved.”
However, the result means that the case is over, except for any cost proceedings, although Philip Morris Asia may appeal the decision.
The case was particularly controversial because it was the first ISDS case brought against Australia. For a more detailed overview of the case and the ISDS provisions, see TimeBase’s earlier article.
Around the world, the plain packaging movement is continuing to gain momentum, with France the latest country to join in the plain packaging movement, having recently passed a law that will see cigarettes sold in plain packaging from May 2016.
However, Australia is still facing a WTO challenge on its plain packaging laws, with a decision not expected until the second half of next year.
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