Evidentiary issues in Philip Morris v Uruguay : the role of the framework convention for tobacco control and lessons for NCD prevention

Abstract

This article analyses the evidentiary assessment made by the investment Tribunal in the case of Philip Morris with a view to drawing some lessons for the regulation of non-communicable diseases (NCD) prevention regulations on food, alcohol, and tobacco. After the introduction, the second Section describes why this dispute, like any dispute concerning NCD prevention measures more generally, raised particularly complex evidentiary challenges. The third Section introduces the provisions and features of the ‘evidence-based’ Framework Convention on Tobacco Control (FCTC) relevant to the dispute. The fourth Section describes the evidentiary assessment made by the Philip Morris Tribunal, highlighting how it relied extensively on the evidence stemming from or related to the FCTC rule in favor of Uruguay. Finally, the last Section draws lessons that the NCD prevention regulation can learn from Philip Morris for respondents in possible future investment disputes.