Trade and investment agreements : barriers to national public health and tobacco control measures

Abstract

Recent litigation by Philip Morris points to the need to exercise caution whilst negotiating new Bilateral Investment Treaties (BITs) to ensure that no substantive provisions run counter to the World Health Organization Framework Convention on Tobacco Control (FCTC). In this context, questions also arise whether investment dispute settlement tribunals under BITs or the dispute settlement body of the WTO are the appropriate fora to adjudicate on disputes pertaining to tobacco control measures that are in accordance with the provisions of the WHO FCTC. Disputes relating to Australia and Uruguay raise significant concerns for implementing measures supportive of public health considerations.