Australia's Plain Packaging of Tobacco Products : Science and Health Measures in International Economic Law

Australia’s introduction of plain packaging of cigarettes, which is a world first, has prompted international legal challenges under both the World Trade Organization (WTO) and the bilateral investment treaty between Australia and Hong Kong. These international legal challenges raise questions as to how scientific evidence used to justify public health measures is, or should be, treated in international economic law. For instance, what is the significance of uncertainty or gaps in scientific knowledge? How should a tribunal or panel treat divergent scientific opinions? What quantity and quality of scientific evidence is required to establish a causal connection between a measure and its objectives under the applicable standard of proof? Certain features of Australia’s plain packaging laws make these questions particularly pertinent: they will be operating amongst a suite of other measures directed at the same objective; they will be implemented in a context where external social forces may seek to undermine their impact; and this is the first time they have been tried anywhere in the world. These factors make it difficult to measure their effectiveness in the real world with precision. However, despite these difficulties, we find that both, investor-State tribunals and WTO panels and the Appellate Body have demonstrated a welcome degree of flexibility in how they approach scientific evidence. That said, a number of key areas of uncertainty remain in international economic law, and the disputes over plain packaging could play an important role in bringing clarity to those areas