McCade Centre : For Law and Cancer

Philip Morris Asia Challenge under Australia – Hong Kong Bilateral Investment Treaty

Philip Morris Asia (PMA) has brought proceedings against the Australian Government under the 1993 Agreement between the Government of Australia and the Government of Hong Kong for the Promotion and Protection of Investments. PMA has made a number of arguments, including that plain packaging would expropriate its intellectual property, and that it has not been afforded fair and equitable treatment.

The Australian Government is defending the proceedings. It argues that PMA’s claim should be rejected as a matter of jurisdiction on the basis that it only acquired its 100% shareholding in PM Australia 10 months after the announcement that plain packaging would be introduced. In the event that the claim proceeds to a determination on the merits, the Australian Government argues that plain packaging does not deprive PMA of its investment, or subject PMA to measures that are equivalent to deprivation. It argues that ‘it is difficult to conceive of governmental action further removed from the unfair or inequitable treatment of an investor’, noting that ‘when PM Asia acquired its interest in PM Australia on 23 February 2011, it did so in full knowledge and with the expectation that the Australian Government would implement the plain packaging measure announced on 29 April 2010.’

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