Implications of International Investment Law for Plain Tobacco Packaging: Lessons from the Hong Kong–Australia BIT

Tania Voon and Andrew Mitchell, ‘Implications of international investment law for plain tobacco packaging: lessons from the Hong Kong–Australia BIT’ in Tania Voon et al (eds), Public Health and Plain Packaging of Cigarettes: Legal Issues (Edward Elgar, 2012) 137–172 (ISBN 9780857939425)

36 Pages Posted: 13 Jan 2014

See all articles by Tania Voon

Tania Voon

University of Melbourne - Law School

Andrew D. Mitchell

University of Melbourne - Law School

Date Written: 2012

Abstract

This chapter uses the Hong Kong-Australia BIT as a case study to illustrate how plain packaging measures are likely to fare in international investment law. It examines in detail the investment claim made by Philip Morris Asia Limited ('PMA') against Australia under the BIT, including matters associated with the jurisdiction of an established arbitral tribunal, the relevance of potential local remedies and the nature of PMA's investment in Australia. In assessing Australia's options in light of the PMA claim, it is concluded that PMA likely has a relevant investment to found jurisdiction in a claim under the BIT, and that Australia would have difficulty extinguishing such a claim. In light of this, Australia may wish to consider modification of some of its BITs to clarify that the parties never intended public health measures to be caught by investor-State claims. It is further argued that the only breach of the Hong Kong-Australia BIT that PMA might be able to make out relates to expropriation, which is countered by evidence collected by the Australian government concerning the health effects of plain packaging. In the event of an adverse award against Australia, PMA may face enforcement difficulties for reasons of public policy and sovereign immunity.

Keywords: World Trade Organization, WTO, International Investment Law, Plain Tobacco Packaging, Tobacco, Plain Packaging, Hong Kong-Australia BIT, BIT, Bilateral Investment Treaty, Public Health, Philip Morris, Philip Morris Asia Limited, Australia, Hong Kong, investor-State claims

JEL Classification: I18, K33

Suggested Citation

Voon, Tania and Mitchell, Andrew D., Implications of International Investment Law for Plain Tobacco Packaging: Lessons from the Hong Kong–Australia BIT (2012). Tania Voon and Andrew Mitchell, ‘Implications of international investment law for plain tobacco packaging: lessons from the Hong Kong–Australia BIT’ in Tania Voon et al (eds), Public Health and Plain Packaging of Cigarettes: Legal Issues (Edward Elgar, 2012) 137–172 (ISBN 9780857939425). Available at SSRN: https://ssrn.com/abstract=2377919

Tania Voon

University of Melbourne - Law School ( email )

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

Andrew D. Mitchell (Contact Author)

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

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