'Respecting Sovereign Statess Tobacco Control Measures'

Abstract

The Philip Morris v Uruguay investment award of 2016 manifested a welcome respect for regulation by sovereign States in the public interest. This paper looks into how the Tribunal reached a regulation-friendly outcome. The Philip Morris v Uruguay Tribunal’s findings essentially rested on dual pivots. The first pivot was Uruguay’s regulatory purpose. Flanking international law in the form of the World Health Organisation (“WHO”) Framework Convention on Tobacco Control (“FCTC”) played in centrally here. The Tribunal accepted that Uruguay’s purpose was the protection of public health. The second pivot was the view that Uruguay’s measures were capable of being effective. Interestingly, amicus briefs from the WHO/FCTC Secretariat and the Pan American Health Organisation (“PAHO”) played in significantly here, alongside direct technical evidence. The Philip Morris v Uruguay Tribunal also invoked notions of deference and margin of appreciation as well as employing concepts of proportionality and disproportionality. But although these concepts eased the way for the majority decision, arguably the real work was done through a mindful interpretation and application of the core investment treaty disciplines that took full account of the flanking international law and the state of the scientific evidence.