Deference and the International Adjudication of Private Property Disputes

Abstract

While working as a government lawyer in 2011, my team received a letter advising that the Philip Morris tobacco company had decided to sue Australia under a bilateral investment treaty. The company contended that Australia’s tobacco plain packaging requirements breached its intellectual property rights, entitling it to billions of dollars in compensation under international law. This news was not particularly shocking to the small team of which I was part, which had been assembled within the government’s Office of International Law to respond to these types of claim. The news was shocking, however, to the wider Australian public. Over the ensuing months, public disbelief became better-articulated in the press: how can an international tribunal sit in judgment over a measure that the Australian parliament had decided was in the public interest after extensive scientific enquiry and public consultation? Could an international tribunal really reverse the finding of Australia’s highest court that the legislation was lawful? These concerns about the appropriate reach of international law and about the appropriate relationship between international adjudicators and domestic decision-makers are longstanding. In 1927, for example, an Australian professor, William Sutton Cumbrae-Stewart KC, contended that: ‘[T]he League of Nations is doomed to failure if it attempts too much in the way of being busy about other people’s business.’ Some thirty-five years later, an American professor, Richard A. Falk, echoed this sentiment, observing that: ‘[I]nternational law, in contrast to domestic law, is much like a Victorian lady and must depend upon an excess of self-restraint to achieve virtue.’ Such concerns have gained traction in recent years as the expansion of international law has prompted qualitatively different and quantitatively increased opportunities