Third Strike: The WTO Panel Reports Upholding Australia's Tobacco Plain Packaging Scheme
Forthcoming in (2019) Pre-edited draft Journal of World Investment & Trade
28 Pages Posted: 15 Nov 2018
Date Written: October 19, 2018
Two of the four disputes against Australia’s tobacco plain packaging scheme in the World Trade Organization (WTO) have now been resolved, with the Dispute Settlement Body’s adoption of the Panel Reports upholding Australia’s tobacco plain packaging scheme with respect to Cuba and Indonesia. The fifth dispute, brought by Ukraine, was previously abandoned. The Panel’s lengthy decision deserves close examination, particularly as regards the balance in WTO law between WTO Members’ legitimate policy objectives (such as promoting public health) and restrictions on (i) trade (under Article 2.2 of the Agreement on Technical Barriers to Trade) or (ii) trademarks (under Article 20 of the Agreement on Trade-Related Aspects of Intellectual Property Rights). The Panel’s approach to the fundamental concepts of trade-restrictiveness (with respect to technical barriers to trade) and unjustifiability (with respect to encumbering trademarks) did not conform with the position put forward by either Australia or the complainants. These areas represent core aspects of the ongoing appeals by Honduras and the Dominican Republic against the Panel Reports. Although Australia did not appeal any of the Panel Reports, its own arguments before the Panel provide further insights into the Panel’s approach. The significance of the Panel Reports is heightened by the continuing United States blockage of appointments to the WTO Appellate Body, which is likely to lead to significant delays in completing the two appeals.
Keywords: evidence, intellectual property, public health, technical barriers to trade, tobacco, trademark, WTO
JEL Classification: K33
Suggested Citation: Suggested Citation