Protecting the Autonomy of States to Enact Tobacco Control Measures Under Trade and Investment Agreements

(2014) Tobacco Control

8 Pages Posted: 14 Oct 2014 Last revised: 21 Apr 2015

See all articles by Andrew D. Mitchell

Andrew D. Mitchell

University of Melbourne - Law School

Elizabeth Sheargold

University of Wollongong

Date Written: October 31, 2014

Abstract

Since the adoption of the World Health Organization’s WHO Framework Convention on Tobacco Control, governments have been pursuing progressively stronger and more wide-reaching tobacco control measures. In response, tobacco companies are frequently using international trade and investment agreements as tools to challenge domestic tobacco control measures. Several significant new trade and investment agreements that some fear may provide new legal avenues to the tobacco industry to challenge health measures are currently under negotiation, including the Trans-Pacific Partnership (a twelve party agreement of Asia-Pacific regional countries) and the Transatlantic Trade and Investment Partnership (an agreement between the United States (US) and the European Union). This commentary examines different options for treaty provisions that the parties could employ in these agreements to minimise legal risks relating to tobacco control measures. It recommends that parties take a comprehensive approach, combining provisions that minimise the potential costs of litigation with provisions that increase the likelihood of a state successfully defending tobacco control measures in such litigation.

Keywords: Tobacco, Trade, Investment, Trans-Pacific Partnership, Transatlantic Trade and Investment Partnership, Public Health, Trade Agreements, Investment Agreements, Negotiation

JEL Classification: I18, K32, K33

Suggested Citation

Mitchell, Andrew D. and Sheargold, Elizabeth, Protecting the Autonomy of States to Enact Tobacco Control Measures Under Trade and Investment Agreements (October 31, 2014). (2014) Tobacco Control. Available at SSRN: https://ssrn.com/abstract=2510002

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

Elizabeth Sheargold

University of Wollongong ( email )

Northfields Avenue
Wollongong, New South Wales 2522
Australia

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