No jurisdiction for plain packaging case

The SMH reports:

The federal government has won its case against tobacco giant Philip Morris Asia challenging Australia’s tobacco plain-packaging laws.

It means the former Gillard government’s plain-packaging laws, introduced in 2011, will remain in place.

Actually it doesn’t. The more significant case is the WTO case brought by a number of countries against Australia. That is yet to be heard and decided. This case is the one under the FTA with Hong Kong.

And incidentally the tribunal could never have ruled that the laws can’t remain in place. At best it would have decided they were a breach and there would have to be compensation or damages.

The tribunal in the arbitration, based in Singapore, has issued a unanimous decision agreeing with Australia’s position that it has no jurisdiction to hear Philip Morris’s claim.   

So this is nothing to do with the merits. It is a jurisdictional issue.

What it does show is that the fear being whipped up against Investor State Dispute clauses was vastly over-stated. The fact this case has failed to gain jurisdiction shows there is a difference between making a claim, and having it upheld.

The WTO case should be heard some stage in 2016. That is the one with the most interest for us in NZ, because we are also a member of the WTO. We were not a party to the Australia – Hong Kong FTA, so that case was always of lesser relevance.

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