Principle of Proportionality and Judicial Discretion in ICSID Arbitration: A Case Study of Tobacco Industry

2021 ◽  
Vol 7 (6) ◽  
pp. 5288-5303
Author(s):  
Qu Guangyi ◽  
Shen Wei
Keyword(s):  
Tobacco Control ◽  
Detrimental Effect ◽  
Control Measures ◽  
Judicial Discretion ◽  
The Public ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
Philip Morris ◽  
Principle Of Proportionality

In the 2003 Tecmedv. Mexico case, the principle of proportionality, which was already practiced under the jurisprudence of the ECtHR, was transplanted to investment arbitration cases under the ICSID. Tobacco control regulations are imposed on tobacco company by state to protect the public health. In landmark case Philip Morris v. Uruguay, the tribunal resorted to the principle of proportionality to prove that tobacco control measures do not constitute the violation of investment treaty. Nevertheless, few have discussed discretionary issues caused by this expanded use especially. This article attempts to challenge the current manner in which the principle of proportionality is utilized in investment arbitration under ICSID. More specifically, it seeks to challenge the discretion exerted by the tribunals when the principle is applied especially applied to tobacco control regulations. This article will demonstrate how the unwarranted judicial discretion has a detrimental effect on predicting how the ICSID tribunals will protect property rights while balancing the host states’ power to regulate.

scholarly journals The Chilling Effect: Investor-State Dispute Settlement, Graphic Health Warnings, the Plain Packaging of Tobacco Products, and the Trans-Pacific Partnership

2018 ◽  
Author(s):  
Matthew Rimmer
Keyword(s):  
Public Health ◽  
Tobacco Control ◽  
Dispute Settlement ◽  
Trade Agreement ◽  
Control Measures ◽  
The European Union ◽  
Health Warnings ◽  
Tobacco Products ◽  
Plain Packaging ◽  
Philip Morris

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 2003 from further investor and trade challenges.

Tobacco control in China and the road to Healthy China 2030

2020 ◽  
Vol 24 (3) ◽  
pp. 271-277 ◽  
Author(s):  
H. Guo ◽  
G. Quan
Keyword(s):  
Tobacco Control ◽  
Tobacco Use ◽  
Monitoring And Evaluation ◽  
Control Measures ◽  
World Health ◽  
Public Health Perspective ◽  
Media Campaigns ◽  
The Public ◽  
Tobacco Tax ◽  
Health Organization

Healthy China 2030 aims to reduce the adult smoking rate from 27.7% in 2015 to 20% by 2030. Achieving this goal requires a review of the tobacco control measures introduced in China to date, the gaps that remain and the opportunities ahead. In 2008, the World Health Organization introduced six measures to reduce demand for tobacco called MPOWER. The progress China has made in implementing these measure varies: 1) monitor tobacco use and prevention policies. The surveillance on tobacco use has been rigorous, but the monitoring and evaluation of tobacco control policies needs to be strengthened; 2) protect people from tobacco use: pushes for national tobacco control legislation have stalled, but 18 subnational legislations have passed; 3) offer help to quit tobacco use. The accessibility and quality of cessation services needs to be improved; 4) warn about the dangers of tobacco. While there are no pictorial health warnings, tobacco control advocates have launched a series of anti-smoking media campaigns to inform the public; 5) enforce bans on tobacco advertising, promotion, and sponsorship. Legal loopholes and poor enforcement remain challenges; 6) raise taxes on tobacco: cigarettes in China are relatively cheap and increasingly affordable, which demonstrates the need for further tobacco tax increases indexed to inflation and income. China maintains a tobacco monopoly that interferes with tobacco control efforts and fails to regulate tobacco products from the public health perspective. Effective MPOWER measures, which depend upon the removal of tobacco industry interference from policymaking, are key to achieving the goal set by Healthy China 2030.

scholarly journals Heated tobacco product regulation under US law and the FCTC

2018 ◽  
Vol 27 (Suppl 1) ◽  
pp. s118-s125 ◽  
Author(s):  
Lauren Kass Lempert ◽  
Stanton A Glantz
Keyword(s):  
Tobacco Control ◽  
Scientific Evidence ◽  
Tobacco Product ◽  
Product Labelling ◽  
Tobacco Products ◽  
Control Laws ◽  
The Public ◽  
Philip Morris ◽  
Product Regulation ◽  
The Usa

Tobacco companies are marketing new ‘heated tobacco products’ (HTPs) composed of battery-powered holders, chargers and tobacco plugs or sticks. The non-tobacco HTP components have escaped effective regulation under many countries’ tobacco control laws because they are packaged and sold separately from the tobacco-containing components. In the USA, HTPs cannot be marketed unless the Food and Drug Administration determines that allowing their sale would be ‘appropriate for the protection of the public health’. Philip Morris International (PMI) is seeking permission to market its IQOS HTP in the USA with ‘modified risk tobacco product’ (MRTP) claims that it reduces exposure to harmful substances and is less harmful than other tobacco products. However, PMI has not submitted adequate scientific evidence required by US law to demonstrate that the product is significantly less harmful to users than other tobacco products, that its labelling would not mislead consumers, or that its marketing—with or without MRTP claims—would benefit the health of the population as a whole. Parties to the WHO Framework Convention on Tobacco Control (FCTC) must take measures to reduce tobacco use and nicotine addiction, and prevent false or misleading tobacco product labelling, advertising and promotions; the introduction of new HTPs must be assessed according to these goals. All components of HTPs should be regulated at least as stringently as existing tobacco products, including restrictions on labelling, advertising, promotion and sponsorship, sales to minors, price and taxation policies and smokefree measures. There is nothing in US law or the FCTC that prevents authorities from prohibiting HTPs.

scholarly journals Assessing Tourists’ Preferences of Negative Externalities of Environmental Management Programs: A Case Study on Invasive Species in Shei-Pa National Park, Taiwan

2019 ◽  
Vol 11 (10) ◽  
pp. 2953 ◽  
Author(s):  
Tzu-Ming Liu ◽  
Chia-Mei Tien
Keyword(s):  
Prevention And Control ◽  
National Park ◽  
Public Support ◽  
Control Measures ◽  
Discrete Choice Experiments ◽  
Negative Externalities ◽  
The Public ◽  
Prevention And Control Measures ◽  
And Control

This study uses discrete choice experiments to evaluate and reduce the environmental impact of negative externalities of managing invasive alien species (IAS), such as “ecological shock”, “health risk”, “waiting time” “tour range” and “prevention and control fee”, on the support of IAS prevention and control. We used data from Taiwan’s Shei-Pa National Park and its visitors for the case study and obtained 602 valid questionnaires. The results indicate that visitors consider that each unit of externality of IAS prevention and control measures significantly reduces their utility, and the magnitude equals the estimated value of externality. However, although negative externalities are inevitable, the support for IAS prevention and control measures could be maximized by adjusting the types and proportions of negative externalities. For example, visitors are willing to sacrifice up to 1.41% of the tour range in exchange for a 1% reduction in ecological shock. This study summarizes the negative externalities of IAS prevention and control measures and proposes to adjust the combination of negative externalities to reduce the shocks of those IAS prevention and control measures on the public, so as to increase the public support for IAS policies and increase the sustainability of tourism.

The 2019 Netherlands Model BIT: riding the new investment treaty waves

2019 ◽  
Vol 35 (3) ◽  
pp. 347-374 ◽  
Author(s):  
Kabir A N Duggal ◽  
Laurens H van de Ven
Keyword(s):  
Dispute Settlement ◽  
Foreign Affairs ◽  
Public Consultation ◽  
The Public ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
Parliamentary Debate ◽  
Draft Model ◽  
The Government ◽  
Dispute Settlement System

Abstract Investor–state arbitration is undergoing a paradigm shift with several countries and regional blocs rethinking the best way to protect investor rights while retaining sovereign prerogatives. This is where the Netherlands fits into the narrative. Its decision to modernize appears to follow the contemporary developments in investment arbitration, including heightened public scrutiny on the effect of investment treaties on regulatory space and the investor-to-state dispute settlement system, as well as the Post-Treaty of Lisbon European Union framework for investment arbitration. On 16 May 2018, the Dutch Ministry of Foreign Affairs published a draft for a new Model Bilateral Investment Treaty (BIT) on the Government’s website. This was done with a view to updating the earlier Model BIT which dates. Through public consultation, individuals and interest groups were invited to share their views. The Government amended the 2018 Draft Model BIT after deliberating on the public reactions it had received, and circulated a new draft on 19 October 2018. Subsequently, after parliamentary debate in February 2019, the Dutch Government published an updated Model BIT on 22 March 2019. In this article, we critically examine the 2019 Final Dutch Model BIT and examine it in light of the global rethink on investment law and policy.

TRIPs and trademarks: the case of tobacco

2004 ◽  
Vol 3 (1) ◽  
pp. 53-82 ◽  
Author(s):  
BENN McGRADY
Keyword(s):  
Tobacco Control ◽  
Trips Agreement ◽  
Control Measures ◽  
Minimum Standard ◽  
Most Favored Nation ◽  
National Treatment ◽  
Tobacco Products ◽  
Plain Packaging

Proposed tobacco control measures such as mandating plain packaging of products and prohibiting the use of terms such as ‘light’ and ‘mild’ when associated with tobacco products raise the issue of to what degree WTO Members have regulatory freedom in relation to trademarks under the TRIPs Agreement. This paper uses these measures as a case study to examine rules relating to registration and use of trademarks. More particularly, the scope of Article 20 is addressed, as is the issue of whether TRIPs creates a positive right to use a trademark. This paper argues that no right of use is provided for by TRIPs and that Article 20, whilst not prohibiting the measures in question, is not based upon sound principle and is difficult to interpret. Finally, this paper argues that rules relating to use of trademarks require re-negotiation and that a minimum standard of protection for use of trademarks is not justified except where such a standard relates to principles of national treatment or most-favored-nation principles.

scholarly journals Investor-State Dispute Settlement and Tobacco Control: Implications for Non-communicable Diseases Prevention and Consumption-Control Measures

2017 ◽  
Vol 17 (2) ◽  
pp. 102 ◽  
Author(s):  
Hope Johnson
Keyword(s):  
Alcohol Abuse ◽  
Tobacco Control ◽  
Dispute Settlement ◽  
Communicable Disease ◽  
Communicable Diseases ◽  
Control Measures ◽  
Non Communicable Diseases ◽  
Plain Packaging ◽  
Philip Morris ◽  
Consumption Control

Public health advocates and policy makers have long considered how to translate the successes of tobacco control measures to address alcohol abuse and the excessive consumption of ultra-processed and nutrient-poor foods. Correspondingly, the strategies adopted by tobacco companies to prevent or delay regulation often parallel those adopted by the alcohol and food industries. Philip Morris, a leading tobacco company, has recently used investor–state dispute settlement (ISDS) mechanisms as a new strategy to hinder or prevent tobacco control measures in the form of plain packaging requirements. The cases that followed may have implications for the development of novel consumption-control measures, like plain packaging laws, aimed at preventing non-communicable diseases such as cancer and cardiovascular disease. This paper considers how the challenges to tobacco control measures through ISDS mechanisms could affect the development of consumption-control measures aimed at reducing alcohol abuse and unhealthy food consumption for non-communicable disease prevention. Using the recent ISDS challenges by Philip Morris as case studies, this paper draws out lessons and issues for the future development of consumption-control measures.

scholarly journals Through the looking glass: The UNCITRAL Rules on Transparency and what they reveal about theories of investment treaty arbitration

2021 ◽  
Author(s):  
◽  
Johanna McDavitt
Keyword(s):  
International Law ◽  
Public Interest ◽  
Commercial Arbitration ◽  
Public International Law ◽  
The Public ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
Theoretical Conception ◽  
Looking Glass ◽  
Investment Treaty Arbitration

<p>This paper aims to use the transparency debate within investment arbitration, and specifically the discussions of Working Group II when preparing the UNCITRAL Rules on Transparency, as a lens to examine how the international community conceptualises investment arbitration. It will argue that investment arbitration is no longer viewed as a private system of dispute resolution akin to international commercial arbitration. Rather, the public interest, public international law, and regulatory nature of investment arbitration is increasingly coming to the fore. Accordingly, the consent of the parties is no longer at the heart of arbitral authority. This paper aims to identify what alternate theoretical conception of investment arbitration is driving transparency initiatives in investment arbitration.</p>

Das Recht auf gesundheitliche Regulierung im Investitionsschiedsverfahrensrecht

2019 ◽  
Author(s):  
Cornelia Kirchbach
Keyword(s):  
International Law ◽  
Public International Law ◽  
The Public ◽  
Investment Protection ◽  
Treatment Standard ◽  
Investment Arbitration ◽  
Philip Morris ◽  
Fair And Equitable Treatment ◽  
Equitable Treatment ◽  
Health Regulations

Conflicts and tensions frequently arise between public regulatory interests and investment protection, especially in the area of global health law. Which requirements must a host state observe in order to avoid liability before an investment arbitration tribunal for violation of both the prohibition on expropriation and the fair and equitable treatment standard when introducing health regulations? This thesis examines the framework for national regulations under public international law, on the basis of the verdict in the Philip Morris v Uruguay case. In doing so, it examines the areas of worker protection, environmental health, alcohol consumption and food health exemplarily. The analysis concludes that restrictions on national leeway in this respect through regulations in the public interest are less intrusive than often assumed.

scholarly journals Communicating the risk of COVID-19 during sporting events in Qatar: Challenges and opportunities

2021 ◽  
Vol 2021 (2) ◽  
Author(s):  
Mohamed Nour ◽  
Zohair Elseid ◽  
Abdulrazig Hummaida ◽  
Walid Osman ◽  
Mohammed Al-Hajri ◽  
...  
Keyword(s):  
Risk Perception ◽  
Control Measures ◽  
Outbreak Investigation ◽  
Sporting Events ◽  
The Public ◽  
Health Advice ◽  
Challenges And Opportunities ◽  
History Of

Background: After a long, unprecedented pause, sporting events were cautiously resumed in Qatar in September 2020. With the persisting COVID-19 uncertainties, characterizing the COVID-19 risks related to sports activities remains to be examined, making it difficult to give clear messages. This report describes some of the key challenges and opportunities for communicating COVID-19 risks associated with sporting events. Methods: The outbreak investigation report for COVID-19 cases related to the Asian Federation Cup (AFC) Champions League-West hosted in Qatar Sep 14th to Oct 3rd, 2020 was interpreted and taken as a case study. Results: The outbreak investigation reports, which involved approximately 74 COVID-19 cases is shown in and constituted the main subject to communicate the risks of the infection. The investigation teams were engaged in person-to-person communication, reviewing the history of the possible risk exposure and explaining the recommended measures. Clubs’ physicians and delegations besides the local organizing committee seem to have played a pivotal role as a credible source of information to the players and media about the possible case scenarios and the control measures. The yet unclear mode of transmission may have contributed to the poor risk perception and the compliance with the unfamiliar preventive recommendations. Conclusion: The profound evolution of the pandemic has already offered a unique opportunity to overcome the ‘lack of attention’ in the communication of communicable diseases. Using the epidemiological findings to communicate COVID-19 risks during sporting events seemed to be beneficial to explain the virus characteristics, emphasizing the role of the epidemiological approaches to improve the risk perception and the compliance with the public health advice.

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