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December 21st, 2011:

Investor-State Arbitration – Tobacco Plain Packaging

http://ag.gov.au/www/agd/agd.nsf/page/8F5B65DEBCAED226CA25796D006B4857

Investor-State Arbitration – Tobacco Plain Packaging

On 1 December 2011 the Tobacco Plain Packaging Act 2011 (“the TPP Act”) received Royal Assent and became law in Australia.

The TPP Act forms part of a comprehensive Government strategy to reduce the rate of smoking in Australia. Smoking is one of the leading causes of preventable death and disease in Australia.

Philip Morris Asia is challenging the plain packaging legislation under the 1993 Agreement between the Government of Australia and the Government of Hong Kong for the Promotion and Protection of Investments. On 21 December 2011, the Government provided its Response to Philip Morris Asia’s Notice of Arbitration.

The arbitration will be conducted under the United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules 2010.

As the proceedings brought by Phillip Morris Asia concern the Government’s right to take regulatory measures to protect public health, it is important that the public have access to information relating to the proceedings. The Government is committed to achieving transparency in these proceedings. This website will be used to provide relevant information and available documents.

Constitutional Challenges to Tobacco Plain Packaging

A number of cases have been initiated in the High Court of Australia challenging the constitutional validity of the plain packaging legislation.

The parties’ written submissions in these proceedings will be available to the public on the High Court’s website, and the hearings will also be open to the public.

Key Documents

Related links

Key Legislation

Investor-State Arbitration – Tobacco Plain Packaging

http://ag.gov.au/www/agd/agd.nsf/page/8F5B65DEBCAED226CA25796D006B4857

On 1 December 2011 the Tobacco Plain Packaging Act 2011 (“the TPP Act”) received Royal Assent and became law in Australia.

The TPP Act forms part of a comprehensive Government strategy to reduce the rate of smoking in Australia. Smoking is one of the leading causes of preventable death and disease in Australia.

Philip Morris Asia is challenging the plain packaging legislation under the 1993 Agreement between the Government of Australia and the Government of Hong Kong for the Promotion and Protection of Investments. On 21 December 2011, the Government provided its Response to Philip Morris Asia’s Notice of Arbitration.

The arbitration will be conducted under the United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules 2010.

As the proceedings brought by Phillip Morris Asia concern the Government’s right to take regulatory measures to protect public health, it is important that the public have access to information relating to the proceedings. The Government is committed to achieving transparency in these proceedings. This website will be used to provide relevant information and available documents.

Constitutional Challenges to Tobacco Plain Packaging

A number of cases have been initiated in the High Court of Australia challenging the constitutional validity of the plain packaging legislation.

The parties’ written submissions in these proceedings will be available to the public on the High Court’s website, and the hearings will also be open to the public.

Key Documents

WHO Targets for Member states to comment

http://www.who.int/nmh/events/2011/consultation_dec_2011/en/index.html

Monitoring framework and targets for the prevention and control of NCDs

Consultation on a comprehensive global monitoring framework for NCDs and voluntary global targets for the prevention and control of NCDs

20 December ׀ 2011 Geneva — In response to paragraphs 61 and 62 of the Political Declaration of the General Assembly on the Prevention and Control of Noncommunicable Diseases (resolution 66/2), WHO has developed a discussion paper outlining a comprehensive global monitoring framework and the technical background for developing a set of voluntary global targets for the prevention and control of NCDs, for consideration by Member States.

The proposed framework is expected to be applicable across regional and country settings, including through multisectoral approaches, to monitor trends and to assess progress made in the implementation of national strategies and plans on NCDs.

The suggested targets will be measured in 2025 against a baseline in 2010. The proposed indicators are intended to be used to assess progress and achievement towards the targets. The proposed data sources describe the origins of information for the indicators. The examples of targets have been developed by WHO following scientific review of the current situation and trends of NCDs, combined with a critical assessment of the evidence base for interventions and feasibility, based upon demonstrated country achievement.

This work responds to a call to action included in the Political Declaration to develop, with the participation of Member States, and through the WHO Governing Bodies in 2012, a comprehensive global monitoring framework and prepare recommendations for a set of voluntary global targets for the prevention and control of NCDs.

WHO Member States are invited to submit their views by sending an email to ncdmonitoring@who.int.

An informal consultation with Member States will take place on Monday, 9 January 2012 and Tuesday, 10 January 2012 to review WHO’s ongoing work to develop a comprehensive global monitoring framework and recommendations for a set of voluntary global targets for the prevention and control of noncommunicable diseases. WHO invites Member States to send an email to Ms Karina Wolbang-Sakulin (wolbangk@who.int) confirming their participation, including the coordinates of the delegate(s) who will attend the informal consultation.

Following this consultation, a proposal on the global monitoring framework and voluntary global targets will be developed for consideration by Member States at the World Health Assembly in May 2012.

A COMPREHENSIVE GLOBAL MONITORING FRAMEWORK AND VOLUNTARY GLOBAL TARGETS FOR THE PREVENTION AND CONTROL OF NCDS

Introduction
Noncommunicable diseases (NCDs) are currently the leading global cause of
death worldwide. Of the 57 million deaths that occurred globally in 2008, 36 million
deaths – almost two thirds- were due to NCDs, comprising mainly cardiovascular
diseases, cancers, diabetes and chronic lung diseases (1). The combined burden of these
diseases is rising fastest among lower income countries. About one fourth of global
NCD-related deaths take place before the age of 60 (2).
A large proportion of NCDs are preventable. These NCDs share modifiable
behavioural risk factors like tobacco use, unhealthy diet, lack of physical activity, and the
harmful use of alcohol, which, in turn, lead to overweight and obesity, raised blood
pressure, and raised cholesterol. The cost of doing nothing over the next three decades
amounts to trillions of dollars of lost resources (3). Feasible and cost-effective
interventions exist to reduce the burden and impact of NCDs and sustained action to
prevent risk factors and improve health care can avert millions of preventable premature
deaths (4).
The global strategy for the prevention and control of NCDs (5) has three key
components: surveillance, prevention, and health care. Surveillance aims to monitor
NCDs and to analyse their social, economic, behavioural and political determinants in
order to provide guidance for policy, legislative and financial measures.

IntroductionNoncommunicable diseases (NCDs) are currently the leading global cause ofdeath worldwide. Of the 57 million deaths that occurred globally in 2008, 36 milliondeaths – almost two thirds- were due to NCDs, comprising mainly cardiovasculardiseases, cancers, diabetes and chronic lung diseases (1). The combined burden of thesediseases is rising fastest among lower income countries. About one fourth of globalNCD-related deaths take place before the age of 60 (2).A large proportion of NCDs are preventable. These NCDs share modifiablebehavioural risk factors like tobacco use, unhealthy diet, lack of physical activity, and theharmful use of alcohol, which, in turn, lead to overweight and obesity, raised bloodpressure, and raised cholesterol. The cost of doing nothing over the next three decadesamounts to trillions of dollars of lost resources (3). Feasible and cost-effectiveinterventions exist to reduce the burden and impact of NCDs and sustained action toprevent risk factors and improve health care can avert millions of preventable prematuredeaths (4).The global strategy for the prevention and control of NCDs (5) has three keycomponents: surveillance, prevention, and health care. Surveillance aims to monitorNCDs and to analyse their social, economic, behavioural and political determinants inorder to provide guidance for policy, legislative and financial measures.

Download full PDF : WHO_Discussion_Paper_FINAL

Big tobacco accused of legal trick

http://www.theage.com.au/national/big-tobacco-accused-of-legal-trick-20111221-1p5qv.html

Philip Morris is fighting the government's plain packaging laws.

Philip Morris says the plain packaging laws will adversely affect its investment in the company’s Australian operation. Photo: Reuters

THE Gillard government has accused tobacco giant Philip Morris of engaging in corporate restructuring as a ”trick” to find new legal avenues to challenge plain cigarette packaging laws.

The company has launched a multibillion-dollar compensation claim against the government through its Hong Kong arm, Philip Morris Asia, claiming the packaging laws breach a trade treaty between Hong Kong and Australia.

Philip Morris Asia says the laws adversely affect its investment in the company’s Australian operation, which was supposed to be protected under the 20-year-old trade treaty.

Illustration: Ron Tandberg.

Illustration: Ron Tandberg.

But the government has hit back, saying the challenge should be thrown out because Philip Morris Asia did not acquire its shareholding in the Australian operation until almost a year after the packaging policy was announced.

Attorney-General Nicola Roxon said the government’s response, filed last night, showed Philip Morris Australia had engaged in corporate restructuring to use the treaty to challenge the plain packaging laws after they had been announced.

Canberra’s response says: ”Philip Morris Asia acquired its shares in Philip Morris Australia on 23 February, 2011, both in the full knowledge that the decision had been announced by the Australian government to introduce plain packaging, and also in circumstances where various other members of the Philip Morris group had repeatedly made clear their objections … [which] had not been accepted by the government.”

Accusing ”big tobacco” of using ”every trick in the playbook”, Ms Roxon said she was confident the plain packaging laws would be upheld.

The government announced its plain packaging plan in April last year, and the legislation was passed last month. On the same day, Philip Morris Asia lodged a notice of arbitration with the United Nations Commission on International Trade Law, seeking suspension of the laws and compensation for losses flowing from them. At the time, the company said it was seeking damages ”of the order of billions of Australian dollars”.

In its response, the government says ”pre-existing disputes” cannot be ”repackaged” as claims under the treaty ”many months after the measure has been announced”. It also contends that even under the treaty, it is able to make laws to protect public health.

Alongside its complaint under international trade law, Philip Morris this week joined three other tobacco companies in taking High Court action against the laws.

Philip Morris, which has a 37 per cent market share in Australia with brands including Marlboro and Alpine, said the law effectively acquired its ”valuable brands and intellectual property” without compensation. The world-first legislation will from next December strip all branding from cigarette packs and force them to be drab green in colour, with large, graphic health warnings.

Tobacco companies are fighting the laws through every possible means because they are seen as an international test case. The government says smoking costs billions of dollars in health and lost productivity.

“Let there be no mistake, big tobacco is fighting the government for one very simple reason – because it knows, as we do, that plain packaging will work,” Ms Roxon said.

The government has appointed Canadian professor Don McRae as its representative on the tribunal that will hear the case, with another appointment to be made by the company and one by the tribunal itself. The case could take years.

Read more: http://www.theage.com.au/national/big-tobacco-accused-of-legal-trick-20111221-1p5qv.html#ixzz1hBOwEAHs

Australia’s Response to the Notice of Arbitration

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