Tobacco Investment Disputes - Public Policy, Fragmentation of International Law and Echoes of the Calvo Doctrine
pages 161 - 182
ABSTRACT:

The following article examines Philip Morris’s recently initiated investment arbitrations. The tobacco corporation claims damages from Uruguay and Australia, for their adoption of regulatory measures alleged to limit the PM’s trademark rights. The disputes have intriguing implications for international investment law because they question the boundary between legitimate regulation for the promotion of public health, on the one hand, and investment protection, on the other. In the present article, the focus will be placed on possible invocation of non-investment international law in investment arbitrations. In particular, the WTO law (TRIPS Agreement) and the Framework Convention on Tobacco Control (“FCTC”) will be discussed. After a brief analysis of the states’ contentious measures and the investor’s claims, the methods for invoking noninvestment law in investment disputes will be elaborated upon. In conclusion, the optimal manner for tribunals to consider the relevant provisions of TRIPS and the FCTC while interpreting the applicable BITs will be proposed. The allegations of the WTO law violations will be argued not to have merit. Finally, the possible policy implications of the disputes will be considered as well as the recent rejection of investorstate dispute settlement mechanisms in some states such as Australia.

keywords
investment arbitration
investment protection
investment disputes
fragmentation
WTO law
TRIPS
intellectual property
Framework Convention on Tobacco Control
tobacco control
public policy
public interest
about the authors

Josef Ostřanský Associate at Ambruz & Dark, Deloitte Legal. He studied at Aarhus Universitet, School of Law, Denmark, and Masaryk University, Faculty of Law, Czech Republic, where he earned his Master’s degree. Currently pursuing Geneva Master’s in International Dispute Settlement (MIDS) at the Graduate Institute and University of Geneva. He focuses mostly on international investment law and arbitration, and public international law.

e-mail: josef.ostransky@graduateinstitute.cz