Case Note: Philip Morris Asia v Australia

Hepburn, Jarrod; Nottage, Luke

doi:10.2139/ssrn.2842065

Cited by 3 publications

(3 citation statements)

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“…An ISDS claim, or the threat of one, may deter governments from enacting health and pharmaceutical policies: an effect known as “regulatory chill.” This occurs partly due to the prohibitive costs associated with ISDS. The Australian Government spent approximately A$23 million defending the claim by Philip Morris Asia over tobacco plain packaging [37]. 10 If the investor wins, the awards may also be substantial: investors initiating ISDS claims in 2017 sought from 15 million USD to 1.5 billion USD [38].…”

Section: Resultsmentioning

confidence: 99%

Analyzing the impact of trade and investment agreements on pharmaceutical policy: provisions, pathways and potential impacts

et al. 2019

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BackgroundTrade and investment agreements negotiated after the World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) have included increasingly elevated protection of intellectual property rights along with an expanding array of rules impacting many aspects of pharmaceutical policy. Despite the large body of literature on intellectual property and access to affordable medicines, the ways in which other provisions in trade agreements can affect pharmaceutical policy and, in turn, access to medicines have been little studied. There is a need for an analytical framework covering the full range of provisions, pathways, and potential impacts, on which to base future health and human rights impact assessment and research. A framework exploring the ways in which trade and investment agreements may affect pharmaceutical policy was developed, based on an analysis of four recently negotiated regional trade agreements. First a set of core pharmaceutical policy objectives based on international consensus was identified. A systematic comparative analysis of the publicly available legal texts of the four agreements was undertaken, and the potential impacts of the provisions in these agreements on the core pharmaceutical policy objectives were traced through an analysis of possible pathways.ResultsAn analytical framework is presented, linking ten types of provisions in the four trade agreements to potential impacts on four core pharmaceutical policy objectives (access and affordability; safety, efficacy, and quality; rational use of medicines; and local production capacity and health security) via various pathways.ConclusionsThe analytical framework highlights provisions in trade and investment agreements that need to be examined, pathways that should be explored, and potential impacts that should be taken into consideration with respect to pharmaceutical policy. This may serve as a useful checklist or template for health and human rights impact assessments and research on the implications of trade agreements for pharmaceuticals.

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Section: Resultsmentioning

confidence: 99%

Analyzing the impact of trade and investment agreements on pharmaceutical policy: provisions, pathways and potential impacts

et al. 2019

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“…134 There was also commentary on the delays and costs involved in the ISDS matter. 135 IV TOBACCO CONTROL, ISDS, THE TRANS-PACIFIC PARTNERSHIP, AND REGIONAL TRADE AGREEMENTS There has been a crisis of legitimacy in respect of the ISDS regime. 136 In response to the ISDS disputes, there have been a number of policy options to address the issue of tobacco control.…”

Section: Reactions To the Decisionmentioning

confidence: 99%

The Chilling Effect

Rimmer

2017

VULJ

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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 2013 from further investor and trade challenges.

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“…For example, Hong Kong's recent BIT with Mexico (2020) 92 includes provisions on environment, health and other regulatory objectives, as well as corporate responsibility. The 2019 Investment Agreement between Australia and Hong Kong (replacing the 1993 BIT in the aftermath of the Philip Morris case) 93 includes provisions making clear that an investor-state arbitration cannot be brought regarding Australia's legislation on tobacco products, 94 as well as similar provisions to the Mexico BIT. 95 Hong Kong is a party to both the ICSID Convention and the New York Convention.…”

Section: Hong Kong: Introduction To Treatiesmentioning

confidence: 99%

Foreign Investment, Investment Treaties and Corruption in China and Hong Kong

Bath,

2024

Asia in Transition

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This chapter focuses on the interaction of domestic regulation of corruption in China and Hong Kong and the increasing number of international arbitration cases brought by and against China. In conjunction with the enormous growth in foreign investment in China since it opened up at the end of the 1970s, China has developed a comprehensive network of international investment agreements (IIAs). Hong Kong is also a party to about 30 IIAs in its own name. Government and business corruption and bribery have been a problem in both jurisdictions. China and Hong Kong have taken active steps to criminalize, and to investigate and prosecute, corruption and to participate in major international initiatives relating to corruption. While corruption has, so far, made a limited appearance in the small number of investor–state dispute settlement (ISDS) cases brought by investors against China and cases brought against other states by Chinese and Hong Kong investors, based on existing material, a number of tentative conclusions and recommendations can be made. China should move towards a higher level of transparency, both in relation to ISDS cases and to its domestic criminal law system; both China and Hong Kong should play a more active role in prosecuting bribery by enterprises outside China, including by joining the OECD Convention on Combating Bribery of Foreign Officials; and, finally, China should consider including provisions relating to corruption in its future IIAs in order to demonstrate its commitment to the international war on corruption in business.

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Case Note: Philip Morris Asia v Australia

Cited by 3 publications

References 5 publications

Analyzing the impact of trade and investment agreements on pharmaceutical policy: provisions, pathways and potential impacts

Analyzing the impact of trade and investment agreements on pharmaceutical policy: provisions, pathways and potential impacts

The Chilling Effect

Foreign Investment, Investment Treaties and Corruption in China and Hong Kong

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