McCade Centre : For Law and Cancer

Dispute in the World Trade Organization

Latest developments 

On 5 May 2014, the Director-General of the WTO appointed panellists to examine the complaints made against Australia's plain packaging laws by Ukraine, Honduras, Dominican Republic, Cuba and Indonesia. The panellists for all five cases are Mr Alexander Erwin (Chairperson), Mr François Dessemontet and Ms Billie Miller. The WTO Secretariat's Notes on the constitution of the panels are available here.

It is difficult to estimate how long the proceedings will take. Under Article 12.8 of the WTO's Understanding on rules and procedures governing the settlement of disputes (DSU), ‘the period in which the panel shall conduct its examination, from the date that the composition and terms of reference of the panel have been agreed upon until the date the final report is issued to the parties to the dispute, shall, as a general rule, not exceed six months'.

However, in practice, this timetable is rarely met. For example, a WTO analysis updated to 30 September 2011, showed the average period from panel composition to provision of the final report to parties to be 10 months and 26 days, with the shortest period being 4 months and 17 days and the longest being 53 months and 28 days. Examples include EC - Asbestos (15 months and 25 days), Mexico - Taxes on Soft Drinks (11 months and 20 days) and Brazil - Retreaded Tyres (13 months and 7 days). The panel has advised that it will not issue its report until at least the first half of 2016. 

If a party appeals the panel's findings, the matter will be considered by the WTO's Appellate Body. Under Article 17.5 of the DSU, the period from notification of a decision to appeal to the circulation of the Appellate Body's report should not exceed 90 days.

On 29 May 2015, the Panel informed the WTO's Dispute Settlement Body that it had granted Ukraine's request, communicated to the Panel on 28 May 2015, to suspend the proceedings in Ukraine's complaint.

The nature of the disputes

The complaining countries argue that Australia's laws breach the WTO's General Agreement on Tariffs and Trade (GATT), Agreement on Technical Barriers to Trade (TBT Agreement) and Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS Agreement), in that they are discriminatory, more trade restrictive than necessary, and unjustifiably infringe upon trademark rights.

Australia argues that its laws are a sound, well-considered measure designed to achieve a legitimate objective, the protection of public health. It is vigorously defending the complaints.

It has been reported that the tobacco multinationals Philip Morris and British American Tobacco are providing support to Dominican Republic, and Ukraine and Honduras respectively.

McCabe Centre's view

In the McCabe Centre view, Australia's laws comply with its WTO obligations. The laws represent a sound exercise of Australia's sovereign power to regulate, are non-discriminatory, based on evidence, well-drafted, and have behind them the legal and political force of the WHO Framework Convention on Tobacco Control, its Article 11 and Article 13, other decisions of its Conference of the Parties, and other international instruments including the Doha Declaration on TRIPS and Public Health.

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