Tobacco Packaging Measures Affecting Intellectual Property Protection Under International Investment Law: The Claims Against Uruguay and Australia

Recent challenges to tobacco packaging measures brought under international investment law shed light on a variety of intellectual property issues. This chapter focuses on the intellectual property aspects of two related disputes: the claim brought by Philip Morris Asia Ltd (Philip Morris Asia) against Australia under the 1993 Agreement between the Government of Hong Kong and the Government of Australia for the Promotion and Protection of Investments (Hong Kong–Australia Bilateral Investment Treaty (BIT)) and the claim brought by FTR Holding SA (Switzerland) (FTR), Philip Morris Products SA (Switzerland) (PMP) and Abal Hermanos SA (Abal) against Uruguay under the 1988 Agreement between the Swiss Confederation and the Oriental Republic of Uruguay concerning the Reciprocal Promotion and Protection of Investments (Switzerland–Uruguay BIT). Both of these disputes involve government adoption of regulatory measures that directly affect the branding, labelling and packaging of tobacco products. They also relate to aspects of the World Health Organization Framework Convention on Tobacco Control (WHO FCTC), negotiated under the auspices of the World Health Organization (WHO), to which Australia, Uruguay and Hong Kong are parties (with Switzerland as merely a signatory). Part 2 of this chapter provides a brief overview of the tobacco packaging measures implemented by Uruguay and Australia. While these legislative schemes share the objective of improving public health through tobacco control, they vary in the way they pursue that objective.