Title

Boxed in? Australia's plain tobacco packaging initiative and international investment law

Date of this Version

2011

Document Type

Journal Article

Publication Details

Citation only

Mitchell, A. D., & Wurzberger, S. M. (2011). Boxed in? Australia's plain tobacco packaging initiative and international investment law. Arbitration International, 27 (4) ,623-651.

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2011 HERDC submission. FoR code: 180117

© Copyright Kluwer Law International BV, 2011

ISSN

0957-0411

Abstract

This article uses Australia as a case study to identify the issues that may arise in ensuring compliance of plain tobacco packaging measures with international investment law. It explains how the tobacco industry could use investor-state dispute settlement under Australia's investment protection agreements, as Philip Morris Asia Limited has done in its claim under the Australia-Hong Kong bilateral investment treaty. It then considers whether the tobacco industry would satisfy the threshold requirement of having made a relevant investment, before considering whether plain packaging could be considered an expropriation or a breach of the fair and equitable treatment obligation or another investment standard. The article concludes that Australia has strong arguments that plain packaging is consistent with its international investment obligations.

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This document has been peer reviewed.