THE IMPLICATIONS OF THE WTO TOBACCO PLAIN PACKAGING DISPUTES FOR PUBLIC HEALTH MEASURES

2021 ◽  
Vol 70 (4) ◽  
pp. 1011-1027
Author(s):  
Andrew David Mitchell ◽  
Theodore Samlidis
Keyword(s):  
Public Health ◽  
World Trade ◽  
Tobacco Industry ◽  
Plain Packaging ◽  
Health Measures ◽  
Appellate Body ◽  
The World ◽  
Investment Law ◽  
Trade And Investment ◽  
Wto Agreements

AbstractAustralia became the first country to introduce standardised or plain packaging laws for tobacco products in 2011. However, they immediately came under direct and indirect challenge from the tobacco industry in various domestic and international fora, including at the World Trade Organization (WTO). The WTO-consistency of Australia's measures was not settled until June 2020, when the Appellate Body upheld two WTO panels’ earlier findings that Australia had acted consistently with its obligations under certain WTO agreements. This article critically analyses the Appellate Body's key findings and their implications for implementing other public health measures. It is shown that these implications are multifaceted, have political, practical and legal dimensions and are likely to reach beyond the WTO dispute resolution system's bounds into other international trade and investment law contexts.

The Treatment of Public Health Measures Affecting Intellectual Property Under Multilateral and Plurilateral Trade and Investment Agreements

2019 ◽  
Vol 20 (5) ◽  
pp. 759-783
Author(s):  
Mark Davison ◽  
Patrick Emerton
Keyword(s):  
Public Health ◽  
Intellectual Property ◽  
Intellectual Property Rights ◽  
World Trade ◽  
Health Measures ◽  
The World ◽  
Regulatory Measures ◽  
Investment Agreements ◽  
Indirect Reference ◽  
Trade And Investment

Abstract This article considers the interpretation of provisions in international economic agreements that protect intellectual property as they relate to public health measures, and in particular to restrictions on the use of tobacco trademarks. A series of decisions, most recently the World Trade Organization (WTO) panel decision holding that Australia’s plain packaging measures for tobacco products comply with WTO obligations, allow for some generalisations. These include: (1) the nature of intellectual property rights is to confer a privilege of exclusive use on the rights-holder; (2) the interpretation of generally-worded treaty provisions is apt to be informed by recognition of the power of States to regulate for the purposes of public health; and (3) where provisions contain their own specifically-worded balancing tests, any direct or indirect reference to regulation for public health contained in the treaty is likely to be treated as weighing very heavily in favour of the legality of regulatory measures.

Exploring the World Trade Organisation's Trade and Environment/Public Health Jurisprudence as a Model for Incorporating a Trade–Labour Linkage into the Organisation's Multilateral Trade Regime: Should African Countries Accept a Policy Shift?

2017 ◽  
Vol 25 (1) ◽  
pp. 47-65
Author(s):  
Tapiwa V. Warikandwa ◽  
Patrick C. Osode
Keyword(s):  
Public Health ◽  
Developing Countries ◽  
World Trade ◽  
African Countries ◽  
Trade Regime ◽  
Multilateral Trade ◽  
Appellate Body ◽  
The World ◽  
Labour Standards ◽  
The Impact

The incorporation of a trade-labour (standards) linkage into the multilateral trade regime of the World Trade Organisation (WTO) has been persistently opposed by developing countries, including those in Africa, on the grounds that it has the potential to weaken their competitive advantage. For that reason, low levels of compliance with core labour standards have been viewed as acceptable by African countries. However, with the impact of WTO agreements growing increasingly broader and deeper for the weaker and vulnerable economies of developing countries, the jurisprudence developed by the WTO Panels and Appellate Body regarding a trade-environment/public health linkage has the potential to address the concerns of developing countries regarding the potential negative effects of a trade-labour linkage. This article argues that the pertinent WTO Panel and Appellate Body decisions could advance the prospects of establishing a linkage of global trade participation to labour standards without any harm befalling developing countries.

scholarly journals Global Governance: The World Trade Organization’s Contribution

2009 ◽  
Vol 46 (4) ◽  
pp. 1061
Author(s):  
Andrew D. Mitchell ◽  
Elizabeth Sheargold
Keyword(s):  
International Law ◽  
World Trade ◽  
Dispute Settlement ◽  
Current System ◽  
Administrative Law ◽  
Administrative Practices ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
The World ◽  
Wto Agreements

Democracy and administrative law concern ideas of governance, legitimacy, and accountability. With the growth of bureaucracy and regulation, many democratic theorists would argue that administrative law mechanisms are essential to achieving democratic objectives. This article considers the World Trade Organization’s (WTO) contribution to governance both in terms of global administrative law and democracy. In relation to administrative law, it first explores the extent to which the WTO’s own dispute settlement process contributes to this area. Second, it considers the operation of administrative law principles embedded within the WTO Agreements on Members. For example, the WTO Agreements require that certain laws be administered “in a uniform, impartial and reasonable manner.” This obligation was recently considered by the Appellate Body, but uncertainty remains about the scope this provision has to permit WTO panels to review domestic administrative practices. In relation to the WTO’s contribution to democracy, this article first considers the challenges and limitations of the current system of decision making within the WTO and compares it to democratic theory. Second, it examines how democracies comply with the findings of WTO dispute settlement tribunals and how compliance could be improved. It concludes by speculating on the implications of this discussion for public international law more broadly.

scholarly journals The Plain Packaging of Tobacco Products

2018 ◽  
Author(s):  
Matthew Rimmer
Keyword(s):  
Public Health ◽  
New Zealand ◽  
Tobacco Control ◽  
World Trade ◽  
Dispute Settlement ◽  
Research Front ◽  
Tobacco Products ◽  
Plain Packaging ◽  
Trinity College Dublin ◽  
The World

The Plain Packaging of Tobacco ProductsThis special edition of the QUT Law Review considers the international debate over the introduction of Australia's pioneering plain packaging of tobacco products. This collection explores the various legal issues raised by tobacco control under public health law, constitutional law, intellectual property, international law, international trade, investor-state dispute settlement, human rights, and sustainable development. Australian scholars consider Australia's legal defence of plain packaging of tobacco products in an array of arenas - including the High Court of Australia, an investor-state dispute settlement tribunal, and the World Trade Organization. International experts consider the introduction of plain packaging of tobacco products in New Zealand, Ireland, the United Kingdom, Canada, and other pioneering public health countries. This collection also considers the adoption of new complementary tobacco control measures - such as tobacco divestment initiatives.ForewordThe Hon. Nicola Roxon (Victoria University)It gives me great pleasure to write a forward on this topic at a time when there is such a groundswell of international support for plain packaging of tobacco products. World No Tobacco today in 2016 had as its tag line “Get ready for plain packaging” and the world’s health ministers are doing just that.When Australia became the first country in the world to remove all colours and logos on tobacco packs in 2011 – recognising their allure to young new smokers – the tobacco industry tried every move in their book to stop us. Lobbying, donations, advertising campaigns, threats, dodgy research, front groups, overblown claims and legal action dominated our political debate for two years. When all these local manoeuvres failed, the industry switched its effort to ensuring we were the only country to take this step.Writing in November 2016, it is clear that those efforts, both local and international, have manifestly failed. Country after country – France, the UK, Ireland, Canada, Norway, New Zealand – are implementing plain packaging, passing their laws or consulting with the community before introduction and many more countries will move this way in the coming months and years.Plain packaging of tobacco products is now truly an international movement. It is an epidemic of the best sort, as countries catch on to its value, purpose and ease of implementation. We will now see its introduction spread like wildfire around the world.When we announced the introduction of plain packaging in Australia, it was a world first.The Government I was part of has received much praise for our resolve and foresight to see this through, from smooth implementation to the great early results already showing significant impact in the reduction of smoking rates across the country. ...(1) 'Tobacco Plain Packaging in Australia: JT International v Commonwealth and Beyond'Dr Catherine Bond (UNSW)(2) 'Regulatory Chill: Learnings from New Zealand's Plain Packaging Tobacco Law'Professor Jane Kelsey (University of Auckland)(3) 'Property and Proportionality: Evaluating Ireland's Tobacco Packaging Legislation'Dr Eoin O’Dell (Trinity College Dublin)(4) 'The Tobacco Industry's Challenge to the United Kingdom's Standardised Packaging Legislation - Global Lessons for Tobacco Control Policy?'Professor Jonathan Griffiths (Queen Mary, University of London)(5) 'Making the Case for Canada to Join the Tobacco Plain Packaging Revolution'Dr Becky Freeman (University of Sydney)(6) 'Investor-State Dispute Settlement and Tobacco Control: Implications for Non-Communicable Diseases Prevention and Consumption-Control Measures'Dr Hope Johnson (QUT)(7) 'The Global Tobacco Epidemic, The Plain Packaging of Tobacco Products, and the World Trade Organization'Professor Matthew Rimmer (QUT)(8) 'Tobacco-Free Investment: Harnessing the Power of the Finance Industry in Comprehensive Tobacco Control'Dr Bronwyn King, Clare Payne, and Emily Stone (Tobacco-Free Futures)

Sustainable Development Provisions in the 1994 GATT/WTO Agreements

2021 ◽  
pp. 129-144
Author(s):  
Marie-Claire Cordonier Segger
Keyword(s):  
Sustainable Development ◽  
World Trade Organization ◽  
World Trade ◽  
Policy Making ◽  
World Summit ◽  
Trade Disputes ◽  
Appellate Body ◽  
The World ◽  
Two Phases ◽  
Wto Agreements

This chapter argues that, while the World Trade Organization (WTO) may have accepted sustainable development as an objective of its members, it is not clear that the WTO has successfully integrated either environment or social development concerns into trade policy-making, to date. It considers the three opportunities for integration discussed in Chapter 3, and the implications of attempts to respond to them within the WTO, in two phases. First, it considers the WTO Agreements after the conclusion of the 1992 United Nations Conference on Environment and Development (UNCED), and the 1994 Uruguay Round, and how they are interpreted by the WTO Panel and Appellate Body in trade disputes, as well as any progress in WTO negotiations with respect to the tensions identified earlier during that period. Second, it considers developments in the WTO Doha Round of trade negotiations that were launched in 2001, directly before the 2002 World Summit on Sustainable Development (WSSD), and how subsequent WTO disputes have addressed these tensions.

Part VI Human Rights and General International Law, Ch.35 Trade Law and Investment Law

2013 ◽  
Author(s):  
Joseph Sarah
Keyword(s):  
Human Rights ◽  
World Trade ◽  
Political Rights ◽  
Cultural Rights ◽  
Trade Law ◽  
The World ◽  
Investment Law ◽  
The Impact ◽  
The Relationship ◽  
Trade And Investment

This article examines the relationship among trade, investment and human rights laws. It analyses the relevant legal relationships as reflected in the salient case law and the synergies between the works of the United Nations, the World Trade Organization (WTO) and the Organisation for Economic Cooperation and Development (OECD). It also considers the impact of WTO rules on specific economic, social and cultural rights, the benefits of free trade and investment for civil and political rights and the human rights protections for traders and investors.

Third Strike: The WTO Panel Reports Upholding Australia’s Tobacco Plain Packaging Scheme

2019 ◽  
Vol 20 (1) ◽  
pp. 146-184 ◽  
Author(s):  
Tania Voon
Keyword(s):  
United States ◽  
Dominican Republic ◽  
World Trade Organization ◽  
World Trade ◽  
Plain Packaging ◽  
Appellate Body ◽  
The World ◽  
Policy Objectives ◽  
Wto Appellate Body

Abstract Two of the four disputes against Australia’s tobacco plain packaging in the World Trade Organization (WTO) have been resolved, with the 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 decision deserves close examination, particularly regarding the balance between WTO Members’ legitimate policy objectives and restrictions on trade or on the use of trademarks. The Panel’s approach to the fundamental concepts of trade-restrictiveness and unjustifiability did not conform with the arguments of Australia or the complainants. These areas represent core aspects of the ongoing appeals by Honduras and the Dominican Republic. Although Australia did not appeal, 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.

scholarly journals The Global Tobacco Epidemic, the Plain Packaging of Tobacco Products, and the World Trade Organization

2018 ◽  
Vol 17 (2) ◽  
pp. 131 ◽  
Author(s):  
Matthew Rimmer
Keyword(s):  
Public Health ◽  
World Trade Organization ◽  
Tobacco Control ◽  
World Trade ◽  
Essential Medicines ◽  
Tobacco Products ◽  
Plain Packaging ◽  
The World ◽  
Tobacco Epidemic ◽  
The Government

In response to complaints by Ukraine, Honduras, the Dominican Republic, Cuba, and Indonesia, the government of Australia has defended the introduction of plain packaging of tobacco products in the World Trade Organization. This article focuses upon the legal defence of Australia before the WTO Panel. A key part of its defence has been the strong empirical evidence for the efficacy of plain packaging of tobacco products as a legitimate health measure designed to combat the global tobacco epidemic. Australia has provided a convincing case that plain packaging of tobacco products is compatible with the TRIPS Agreement 1994, particularly the clauses relating to the aims and objectives of the agreement; the requirements in respect of trade mark law; and the parallel measures in relation to access to essential medicines. Australia has also defended the consistency of plain packaging of tobacco products with the TBT Agreement 1994. Moreover, Australia has provided clear reasons for why the plain packaging of tobacco products is compatible with GATT. The position of Australia has been reinforced by a number of third parties — such as New Zealand, the United Kingdom, Ireland, Norway, Canada, and others — which have also been pioneers in tobacco control and public health. Australia’s leadership in respect of tobacco control and plain packaging of tobacco products is further supported by larger considerations in respect of international public health law, human rights, and sustainable development.

A legal principle of special and differential treatment for WTO disputes

2006 ◽  
Vol 5 (3) ◽  
pp. 445-469 ◽  
Author(s):  
ANDREW D. MITCHELL
Keyword(s):  
Developing Countries ◽  
World Trade ◽  
Dispute Settlement ◽  
Developed Countries ◽  
Differential Treatment ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
Legal Principle ◽  
The World ◽  
Wto Agreements

Based on the notion that the needs of developing countries are substantially different from those of developed countries, the principle of special and differential treatment (S&D) in the World Trade Organization (WTO) allows a certain degree of discrimination in favour of developing countries. This article considers the potential of this principle in resolving disputes within the WTO. S&D developed in the General Agreement on Tariffs and Trade (GATT) of 1947 and is today reflected in a series of provisions in various WTO agreements. The meaning of S&D as a broader principle could assist in interpreting such provisions. In addition, the principle of S&D could conceivably be used as part of the inherent jurisdiction of Panels and the Appellate Body in connection with procedural aspects of dispute settlement. However, the article concludes that, due to the incoherence of S&D, as well as the difficulties involved in distinguishing between developing countries and in advancing their interests as an amorphous group, S&D is presently of limited value as an independent principle in WTO dispute settlement.

Appellate Body Report, United States – Clove Cigarettes

2012 ◽  
Vol 3 (2) ◽  
pp. 251-256 ◽  
Author(s):  
Benn McGrady
Keyword(s):  
Public Health ◽  
United States ◽  
World Trade Organization ◽  
World Trade ◽  
The United States ◽  
Case Note ◽  
Tobacco Products ◽  
Appellate Body ◽  
The Us ◽  
The World

In September 2011, the World Trade Organization (WTO) released the report of a panel tasked with considering a complaint brought by Indonesia concerning prohibitions on certain flavored tobacco products implemented by the United States (US). The panel concluded that the US violated WTO law and recommended that the US be asked to bring its laws into conformity with WTO law.The US appealed the panel's decision. The Appellate Body of the WTO upheld the panel report on April 4, 2012. This case note gives a brief overview of the Appellate Body's report and examines the implications for tobacco control and public health more generally.

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