Evidentiary Issues in Philip Morris v Uruguay: The Role of the Framework Convention for Tobacco Control and Lessons for NCD Prevention

Abstract

This article analyses the evidentiary assessment made by the investment Tribunal in the case of Philip Morris with a view to drawing some lessons for the regulation of non-communicable diseases (NCD) prevention regulations on food, alcohol, and tobacco. After the introduction, the second Section describes why this dispute, like any dispute concerning NCD prevention measures more generally, raised particularly complex evidentiary challenges. The third Section introduces the provisions and features of the ‘evidence-based’ Framework Convention on Tobacco Control (FCTC) relevant to the dispute. The fourth Section describes the evidentiary assessment made by the Philip Morris Tribunal, highlighting how it relied extensively on the evidence stemming from or related to the FCTC rule in favour of Uruguay. Finally, the last Section draws lessons that the NCD prevention regulation can learn from Philip Morris for respondents in possible future investment disputes.

Protecting noncommunicable disease prevention policy in trade and investment agreements

“… 24 , 41 Reference to international instruments, such as WHO’s Framework Convention on Tobacco Control, can also strengthen policy measures for noncommunicable disease prevention. 12 , 13 , 15 The Framework Convention has been used repeatedly as a reference point by tribunals “who reliably uphold non-discriminatory [tobacco control measures] on public health grounds.” 42 In addition, it has been specifically cited as providing supportive evidence for the necessity of tobacco policy measures in formal disputes and other challenges under trade and investment agreements. 13 …”

“… 48 In addition, engagement by global health policy actors can provide normative support for national health policy, as well as technical and evidential support for noncommunicable disease prevention policy measures. 13 , 26 , 48 …”

“…For example, the tobacco company Philip Morris challenged innovative tobacco packaging legislation by the governments of Australia and Uruguay. 7 , 10 , 12 , 13 As a result of these disputes, public health actors are increasingly aware that trade and investment agreements can present barriers to robust prevention measures by constraining the policy space (i.e. the “freedom, scope, and mechanisms that governments have to choose, design, and implement public policies to fulfil their aims”).…”

An NLP-based novel approach for assessing national influence in clause dissemination across bilateral investment treaties

“…Similarly, Melillo [ 11 ] discussed evidentiary issues in investment law, providing a deeper understanding of how evidence is handled in health and investment disputes. These studies collectively offer a comprehensive perspective on the legal complexities of international investment and public health policy, particularly in tobacco control.…”