How to reconcile human rights, trade law, intellectual property, investment and health law? : WTO dispute settlement panel upholds Australia’s plain packaging regulations of tobacco products

Abstract

This comment on the legal findings of the four WTO panel reports of June 2018 on Australia's tobacco plain packaging (TPP) measures begins with a discussion of the ‘systemic interpretation’ challenges (I) and ‘legitimacy challenges’ of WTO panel interpretations of trade rules that affect also related disputes over intellectual property rights, health rights, investment regulations and human rights (II). Section III summarizes the main Panel findings that the TPP measures are apt to, and do make a meaningful contribution to Australia's objective of reducing the use of, and exposure to, tobacco products; the claimants have not demonstrated that the TPP measures are ‘more trade-restrictive than necessary to fulfil a legitimate objective’ in violation of Article 2.2 of the WTO Agreement on Technical Barriers to Trade (TBT). Section IV summarizes the Panel findings that the complainants did not demonstrate that the TPP measures were inconsistent with the WTO Agreement on Trade-Related Intellectual Property Rights (TRIPS). Section V concludes.