Australia's Plain Packaging of Tobacco Products: Science and Health Measures in International Economic Law

Bryan Mercurio and Kuei-Jung Ni (eds), Science and Technology in International Economic Law: Balancing Competing Interests, Routledge, 2013

U of Melbourne Legal Studies Research Paper No. 653

Oxford Legal Studies Research Paper No. 79/2013

15 Pages Posted: 17 Jun 2013 Last revised: 19 Aug 2013

Andrew Higgins

University of Oxford, Faculty of Law

Andrew D. Mitchell

The University of Melbourne - Law School

James Munro

University of Melbourne - Melbourne Law School

Date Written: June 16, 2013

Abstract

Australia’s introduction of plain packaging of cigarettes, which is a world first, has prompted international legal challenges under both the World Trade Organization (WTO) and the bilateral investment treaty between Australia and Hong Kong. These international legal challenges raise questions as to how scientific evidence used to justify public health measures is, or should be, treated in international economic law. For instance, what is the significance of uncertainty or gaps in scientific knowledge? How should a tribunal or panel treat divergent scientific opinions? What quantity and quality of scientific evidence is required to establish a causal connection between a measure and its objectives under the applicable standard of proof? Certain features of Australia’s plain packaging laws make these questions particularly pertinent: they will be operating amongst a suite of other measures directed at the same objective; they will be implemented in a context where external social forces may seek to undermine their impact; and this is the first time they have been tried anywhere in the world. These factors make it difficult to measure their effectiveness in the real world with precision. However, despite these difficulties, we find that both, investor-State tribunals and WTO panels and the Appellate Body have demonstrated a welcome degree of flexibility in how they approach scientific evidence. That said, a number of key areas of uncertainty remain in international economic law, and the disputes over plain packaging could play an important role in bringing clarity to those areas.

Keywords: plain packaging, international trade law, international investment law, public health, evidence, scientific knowledge

JEL Classification: K33, I18

Suggested Citation

Higgins, Andrew and Mitchell, Andrew D. and Munro, James, Australia's Plain Packaging of Tobacco Products: Science and Health Measures in International Economic Law (June 16, 2013). Bryan Mercurio and Kuei-Jung Ni (eds), Science and Technology in International Economic Law: Balancing Competing Interests, Routledge, 2013; U of Melbourne Legal Studies Research Paper No. 653; Oxford Legal Studies Research Paper No. 79/2013. Available at SSRN: https://ssrn.com/abstract=2280071

Andrew Higgins

University of Oxford, Faculty of Law ( email )

St Cross Building
St Cross Road
Oxford, OX1 3UL
United Kingdom

HOME PAGE: http://https://www.law.ox.ac.uk/people/andrew-higgins

Andrew D. Mitchell (Contact Author)

The University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia
+61383441098 (Phone)
+61393472392 (Fax)

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

James Munro

University of Melbourne - Melbourne Law School ( email )

University Square
185 Pelham Street, Carlton
Melbourne, Victoria 3010
Australia

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