Plain Packaging - The Next Chapter

26 September 2012

Professor Luke Nottage comments onpending litigation in international forums against Australia's tobacco plain packaging laws.

An article published in the Financial Times reports that Ukraine, Honduras and the Dominican Republic have started cases against Australia at the WTO, arguing that the plain-packaging rules break the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

The report continues that Tobacco giant, Phillip Morris moved to financially support the litigation by the Dominican Republic and instituted the act of bringing a separate claim of unfair expropriation using the "investor-state" litigation mechanism, which allows a company to sue a government directly, in an Australian bilateral investment treaty with Hong Kong.

In response, the Australian Government now says it will refuse to sign future treaties with investor-state provisions, and has demanded an exemption from a proposed such mechanism in the Trans-Pacific Partnership Agreement (TPP).

Professor Luke Nottage argues that the Australian government's decision is an overreaction, and says that it could simply rewrite investment treaties to exclude IP assets.

However, he notes: "IP is an area where national interests are strong and often in conflict ... it is overtaking other issues like services agreements in its ability to create controversy."

Contact: Greg Sherington

Phone: +61 2 9351 0202

Email: 2528260657650d131550291e2d24192f103329242923791025014d573a