Boxed in? Australia's Plain Tobacco Packaging Initiative and International Investment Law

Arbitration International, Vol. 27, 2011

U of Melbourne Legal Studies Research Paper No. 559

26 Pages Posted: 27 Jul 2011 Last revised: 25 Oct 2011

Andrew D. Mitchell

University of Melbourne - Melbourne Law School

Sebastian M. Wurzberger

affiliation not provided to SSRN

Date Written: July 28, 2011

Abstract

This article uses Australia as a case study to identify the issues that may arise in ensuring compliance of plain tobacco packaging measures with international investment law. It explains how the tobacco industry could use investor-state dispute settlement under Australia’s investment protection agreements, as Philip Morris Asia Limited has done in its claim under the Australia-HK bilateral investment treaty. It then considers whether the tobacco industry would satisfy the threshold requirement of having made a relevant investment, before considering whether plain packaging could be considered an expropriation or a breach of the fair and equitable treatment obligation or another investment standard. The article concludes that Australia has strong arguments that plain packaging is consistent with its international investment obligations.

Keywords: international investment law, plain packaging, international law, tobacco, intellectual property, trademarks

JEL Classification: K32, K33, K41

Suggested Citation

Mitchell, Andrew D. and Wurzberger, Sebastian M., Boxed in? Australia's Plain Tobacco Packaging Initiative and International Investment Law (July 28, 2011). Arbitration International, Vol. 27, 2011; U of Melbourne Legal Studies Research Paper No. 559. Available at SSRN: https://ssrn.com/abstract=1896125

Andrew D. Mitchell (Contact Author)

University of Melbourne - Melbourne Law School ( email )

The University of Melbourne
Victoria, 3010
Australia
+61383441098 (Phone)
+61393472392 (Fax)

HOME PAGE: http://www.law.unimelb.edu.au/staff/Andrew%20Mitchell

Sebastian M. Wurzberger

affiliation not provided to SSRN ( email )

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