Boxed in? Australia's Plain Tobacco Packaging Initiative and International Investment Law

This article uses Australia as a case study to identify the issues that may arise in ensuring compliance of plain tobacco packaging measures with international investment law. It explains how the tobacco industry could use investor-state dispute settlement under Australia’s investment protection agreements, as Philip Morris Asia Limited has done in its claim under the Australia-HK bilateral investment treaty. It then considers whether the tobacco industry would satisfy the threshold requirement of having made a relevant investment, before considering whether plain packaging could be considered an expropriation or a breach of the fair and equitable treatment obligation or another investment standard. The article concludes that Australia has strong arguments that plain packaging is consistent with its international investment obligations