Philip Morris Asia Limited v. Commonwealth of Australia

Abstract

Arbitration — Jurisdiction — Abuse of rights — When commencement of litigation under investment treaty constituting abuse of rights — Whether initiation of arbitration amounting to abuse of rights — Tobacco products legislation on plain packaging — Foreseeability of plain packaging dispute — Corporate group engaging in restructuring in anticipation of plain packaging legislation — Effect of restructuring to place ownership and control in the hands of company incorporated in party to bilateral investment treaty — Whether any cogent reasons other than obtaining protection of the treaty for corporate restructure

Arbitration — Jurisdiction — Existence of a dispute — Critical date — Whether Tribunal having jurisdiction over dispute ratione temporis — Date plain packaging dispute arising — Whether dispute arising prior to critical date

Economics, trade and finance — Investment protection — Bilateral investment treaties — Protection of intellectual property — Trademarks — Legislation requiring that tobacco products be sold only in plain packaging — Whether contrary to Agreement between Government of Hong Kong and Government of Australia for Promotion and Protection of Investments, 1993 — Abuse of rights

Treaties — Agreement between Government of Hong Kong and Government of Australia for Promotion and Protection of Investments, 1993 — Meaning of “control” and “substantial interest” under Article 1(e) of Treaty — Whether Philip Morris Asia exercising control over Philip Morris Australia and Philip Morris Limited pursuant to Article 1(e) — Whether sufficient evidence of control of any significance

Treaties — Agreement between Government of Hong Kong and Government of Australia for Promotion and Protection of Investments, 1993 — Requirement that an investment be admitted in Australia “subject to its laws and policies applicable from time to time” — Foreign Investment Application — Relevance of letter from Treasurer advising no objection to investment — Whether evidence otherwise establishing invalidly admitted investment