Intellectual Property Rights Disputes and Public Health Policy: An Analysis of the Philip Morris v. Australia Case Based on International Law

Abstract

This article examines the trade mark and investment dispute between the multinational tobacco company Philip Morris and the Australian Government, triggered by the enactment of the Tobacco Plain Packaging Act 2011. This policy requires all tobacco products to be sold in plain packaging without logos, colours or promotional branding elements, with the aim of reducing cigarette consumption. Philip Morris responded to this policy through two main avenues of litigation: a challenge to the law’s validity in the High Court of Australia under the Australian Constitution, and an international arbitration claim (Investor-State Dispute Settlement/ISDS) under the Bilateral Investment Treaty (BIT) between Australia and Hong Kong, as well as a dispute before the World Trade Organisation (WTO) under the TRIPS Agreement. Through a normative legal approach, this article analyses the conflict between the protection of Intellectual Property Rights (IPR) under trade law and a state’s sovereign right to protect public health. The results of the analysis show that both national courts and international tribunals have sided with state jurisdiction to regulate public health, establishing an important precedent that plain packaging regulations do not constitute an expropriation of property in breach of international or national trade law, and underscoring the limits of trade mark protection under international law.