Tobacco Investment Disputes – Public Policy, Fragmentation of International Law and Echoes of the Calvo Doctrine
Czech Yearbook of International Law, Vol. 3, 2012, 161
22 Pages Posted: 21 Oct 2012
Date Written: 2012
The following article examines Philip Morris’s recently initiated investment arbitrations. The tobacco corporation claims damages from Uruguay and Australia, for their adoption of regulatory measures alleged to limit the PM’s trademark rights. The disputes have intriguing implications for international investment law because they question the boundary between legitimate regulation for the promotion of public health, on the one hand, and investment protection, on the other. In the present article, the focus will be placed on possible invocation of non-investment international law in investment arbitrations. In particular, the WTO law (TRIPS Agreement) and the Framework Convention on Tobacco Control (“FCTC”) will be discussed. After a brief analysis of the states’ contentious measures and the investor’s claims, the methods for invoking non- investment law in investment disputes will be elaborated upon. In conclusion, the optimal manner for tribunals to consider the relevant provisions of TRIPS and the FCTC while interpreting the applicable BITs will be proposed. The allegations of the WTO law violations will be argued not to have merit. Finally, the possible policy implications of the disputes will be considered as well as the recent rejection of investor-state dispute settlement mechanisms in some states such as Australia.
Keywords: investment arbitration, investment protection, investment disputes, fragmentation, WTO law, TRIPS, intellectual property, Framework Convention on Tobacco Control, tobacco control, public policy, public interest
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