The Chilling Effect: Investor-State Dispute Settlement, Graphic Health Warnings, the Plain Packaging of Tobacco Products and the Trans-Pacific Partnership

Victoria University Law and Justice Journal, 2017, 7 (1), 76-93

18 Pages Posted: 26 Feb 2018 Last revised: 22 Sep 2018

See all articles by Matthew Rimmer

Matthew Rimmer

Queensland University of Technology (QUT)

Date Written: December 15, 2017

Abstract

Investor-State Dispute Settlement (ISDS) poses significant challenges in respect of tobacco control, public health, human rights, and sustainable development. Two landmark ISDS rulings provide procedural and substantive guidance on the interaction between ISDS and tobacco control. The ISDS action by Philip Morris against Uruguay in respect to graphic health warnings raised important procedural and substantive issues. The ISDS matter between Philip Morris and Australia over the plain packaging of tobacco products highlighted matters in respect of abuse of process. In the Trans-Pacific Partnership (TPP), there was a special exclusion for tobacco control measures in respect of ISDS. There was also a larger discussion about the role of general public health exceptions. In the Comprehensive Economic and Trade Agreement (CETA), there was a debate about the application of ISDS to intellectual property rights. In the European Union, there has been discussion of the creation of an international investment court. In the renegotiation of the North American Free Trade Agreement (NAFTA), there has even been calls to abolish ISDS clauses altogether from both Republicans and Democrats. This article concludes there is a need to protect tobacco control measures implementing the WHO Framework Convention on Tobacco Control 2003 from further investor and trade challenges.

Keywords: Tobacco Control, Investor-State Dispute Settlement, Intellectual Property, Public Health, Human Rights, Graphic Health Warnings, Plain Packaging of Tobacco Products, Trans-Pacific Partnership, Comprehensive Economic and Trade Partnership, North American Free Trade Agreement, Trade Marks

JEL Classification: K33

Suggested Citation

Rimmer, Matthew, The Chilling Effect: Investor-State Dispute Settlement, Graphic Health Warnings, the Plain Packaging of Tobacco Products and the Trans-Pacific Partnership (December 15, 2017). Victoria University Law and Justice Journal, 2017, 7 (1), 76-93. Available at SSRN: https://ssrn.com/abstract=3124101

Matthew Rimmer (Contact Author)

Queensland University of Technology (QUT) ( email )

Level 4, C Block Gardens Point
2 George St
Brisbane, Queensland QLD 4000
Australia

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