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 before the end 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.
- Mark Davison, Jonathan Liberman, and Andrew Mitchell, Responding to the tobacco industry's claims that plain packaging breaches international trade and investment law (May 2014)
- Mark Davison, Jonathan Liberman, Andrew Mitchell, Submission on Smoke-free Environments (Tobacco Plain Packaging) Amendment Bill (New Zealand)
- Jonathan Liberman, Waiting out the legal challenges to plain packaging - playing into the tobacco industry's hands? (October 2013)
- Andrew Higgins, Andrew Mitchell and James Munro, Australia's Plain Packaging of Tobacco Products: Science and Health Measures in International Economic Law, Science and Technology in International Economic Law: Balancing Competing Interests (Chapter, 2013)
- Mark Davison and Patrick Emerton, Rights, Privileges, Legitimate Interests, and Justifiabilty: Article 20 of TRIPS and Plain Packaging of Tobacco, American University International Law Review (2013)
- Andrew Mitchell and Tania Voon, Australia's Plain Packaging Law at the WTO, The Conversation (2013)
- Mark Davison, The Legitimacy of Plain Packaging Under International Intellectual Property Law: Why There is No Right to Use a Trademark Under Either the Paris Convention or the Trips Agreement, Public Health and Plain Packaging of Cigarettes: Legal Issues (2012)
- Benn McGrady, Implications of Ongoing Trade and Investment Disputes Concerning Tobacco: Philip Morris v. Uruguay, Public Health and Plain Packaging of Cigarettes: Legal Issues (2012)
- Mark Davison, Why the TRIPS challenges to plain packaging will fail
- Andrew Mitchell and Tania Voon, Face Off: Assessing WTO Challenges to Australia's Scheme for Plain Tobacco Packaging, Public Law Review (2011)
- Andrew Mitchell, Australia's Move to the Plain Packaging of Cigarettes and its WTO Compatibility, Asian Journal of WTO and International Health Law and Policy (2010)
- Mark Davison, ‘Plain Packaging of Cigarettes: Would it be Lawful?' Australian Intellectual Property Law Bulletin (2010) [full text or pdf not available]