The Internationalization of Tobacco Tactics

Abstract

Recently, public health advocates struck a blow against tobacco companies by barring them from bringing challenges under some international trade deals. In this Article, I explain why other governments should adopt similar tobacco “carve-outs.” Specifically, I argue that it is mainly the industry’s aggressive litigation tactics — not the hazardous nature of this consumer product — that justifies treating it in an exceptional manner for the purposes of international litigation. To illustrate my point, first, I explain the nature of the carve-out in relation to a topology of legal forms used to exclude policy areas, economic sectors and particular industries from obligations stipulated in international economic agreements. I follow with a case study of Phillip Morris International to explain how the industry, by relying on litigation before international courts and tribunals, has aimed at delaying, preempting and weakening harmonized anti-smoking regulations. I finish by proposing modest ways to refine “Multinational Enterprise or MNE theory,” which aims at understanding the choices of extending control over subsidiaries operating abroad. In particular, I argue for increasing the recognition of international legal capacity and adjudicatory options in conceptualizing ownership, location, and internalization advantages.

Keywords: tobacco litigation, international trade deals, "carve-outs", litigation tactics, multinational enterprise theory, Philip Morris International