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Tobacco plain packaging—investor-state arbitration

On 1 December 2011, the Tobacco Plain Packaging Act 2011 (the Act) received Royal Assent and became law in Australia.

The Act forms part of a comprehensive range of tobacco control measures to reduce the rate of smoking in Australia and is an investment in the long term health of Australians. Smoking is one of the leading causes of preventable death and disease in Australia.

Tobacco plain packaging is a legitimate public health measure which is based on a broad range of peer reviewed studies and reports, and supported by leading Australian and international public health experts. Further information regarding the implementation of tobacco plain packaging is available on the Department of Health website.

Conduct of the arbitration

Philip Morris Asia challenged the tobacco plain packaging legislation under the 1993 Agreement between the Government of Australia and the Government of Hong Kong for the Promotion and Protection of Investments (Hong Kong Agreenment). This was the first investor-state dispute brought against Australia.

The arbitration is being conducted under the United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules 2010. The tribunal is composed of three arbitrators. Australia appointed Professor Don McRae of the University of Ottawa as an arbitrator. Philip Morris Asia appointed Professor Gabrielle Kaufmann-Kohler as an arbitrator. The Secretary-General of the Permanent Court of Arbitration appointed Professor Dr Karl-Heinz Böckstiegel as the presiding arbitrator.

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Decision on Australia's preliminary jurisdictional objections

On 18 December 2015 the tribunal issued a unanimous decision agreeing with Australia's position that the tribunal has no jurisdiction to hear Philip Morris Asia's claim. On 17 May 2016 the tribunal published the decision with the parties' confidential information redacted. The tribunal found that Philip Morris Asia's claim was an abuse of process (abuse of rights), because Philip Morris Asia acquired an Australian subsidiary, Philip Morris (Australia) Limited, for the purpose of initiating arbitration under the Hong Kong Agreement challenging Australia's tobacco plain packaging laws. This concluded the arbitration in Australia's favour, subject to finalisation of the costs claim.

The decision is available on the Permanent Court of Arbitration website.

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Publicly available arbitration documents

On 27 June 2011, Philip Morris Asia served Australia with a written notification of claim pursuant to Article 10 of the Hong Kong Agreement.

On 21 November 2011, Australia received a formal Notice of Arbitration from Philip Morris Asia.

Australia formally responded to Philip Morris Asia's claim on 21 December 2011. In its response, Australia rejected the claims made by Philip Morris Asia and outlined arguments Australia intended to make in defending its right to implement the tobacco plain packaging measure.

All publicly available procedural orders issued by the tribunal is available on the Permanent Court of Arbitration website.

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World Trade Organization challenges to tobacco plain packaging

The Department of Foreign Affairs and Trade (DFAT) has primary responsibility for the Australian Government's defence of the tobacco plain packaging measure in the World Trade Organization (WTO). The Office of International Law within the Attorney-General's Department is providing DFAT with additional support.

The WTO Dispute Settlement Body has established dispute settlement panels at the requests of Ukraine (on 28 September 2012), Honduras (on 25 September 2013), Indonesia (on 26 March 2014), Dominican Republic (on 25 April 2014) and Cuba (on 25 April 2014) in relation to Australia's tobacco plain packaging measure. The five complainants are arguing that the measure is inconsistent with Australia's WTO obligations under the Agreement on Trade-Related Aspects of Intellectual Property Rights, the Agreement on Technical Barriers to Trade and the General Agreement on Tariffs and Trade 1994.

To date, a record number of WTO members (in excess of 40) have joined those disputes as third parties.

On 5 May 2014, the WTO Director-General appointed Mr Alexander Erwin (Chair, South Africa), Professor François Dessemontet (Member, Switzerland) and Dame Billie Miller (Member, Barbados) as panelists to hear the disputes. All five disputes will be heard together, pursuant to a harmonised timetable.

In response to Australia's request, the panel issued preliminary rulings on 19 August 2014 regarding the scope of the complainants' claims. These rulings were published on 27 October 2014.

The chair of the panel informed the Dispute Settlement Body on 10 October 2014 that the panel expects to issue its final report to the parties in the second half of 2016.

Information about the tobacco plain packaging disputes in the WTO, and the WTO and its dispute settlement processes more generally, is available from the Department of Foreign Affairs and Trade website. All enquiries relating to the WTO tobacco plain packaging disputes should be directed to DFAT.

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Constitutional challenges to tobacco plain packaging

Two challenges to the tobacco plain packaging legislation were heard by the High Court of Australia between 17–19 April 2012: British American Tobacco Australasia Limited and Ors v. Commonwealth of Australia and J T International SA v. Commonwealth of Australia.

On 15 August 2012, the High Court handed down orders for these matters, and found that the Tobacco Plain Packaging Act 2011 is not contrary to s 51(xxxi) of the Constitution. On 5 October 2012 the court handed down its reasons for the decision. By a 6:1 majority (Heydon J in dissent) the court held that there had been no acquisition of property that would have required provision of 'just terms' under s51(xxxi) of the Constitution.

The parties' written submissions, the full transcript of proceedings and the High Court's orders and reasons are available on the High Court of Australia website.

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