" 21 November 2011 The Han Robert McClelland MP Attorney-General for Austra li a c/- Australian Government So li c it or Lionel Murphy Building 50 Blackall Street BARTON ACT 2600 Fa x: +61 2 6253 7333 By fax and courier Simon Daley Chief Solicitor, Dispute Resolution Australian Government Solicitor Level 42 MLC Centre 19 Martin Place SYDNEY NSW 2000 Fax: +61 2 9581 7778 Email: [email protected]BY'email, fax and courier Dear Attorney-General and Mr Daley, Notice of Arbitration Australia I Hong Kong Agreement for the Promotion and Protection of Investments Investor: Philip Morris Asia Limited Aliens Arthur Robinson IOff JiII'd j()@ Hovse I Connilughl Place Central Hong KOIIg T +852 2840 12'02 . 13 F +-852 2840 0686 II • .......w. <l.,...tOfTl .'U PI. !JlI!,., IIIJ:_II.- 1!l .... ,...+ .. We refer to Philip Morris Asia limited's written notice of claim dated 22 June 20 11 . Pursuant to Article 10 of the Agreement between the Government of Hong Kong and the Government of Australia for the Promotion and Protection of Investments, and Art icle 3 of the UNCITRAL Arbitratton Rules 2010, enc lo sed by way of service is a noti ce of arbitrati on dated 21 November 201 1. Yours faithfully Enel _ is ot .... JII 8el li ne IP I!i. ... 8m,baM .. .... lKafII!I ,",0 011 /0111>/1 CII)' .. Hone f(onll .. JaUn • •• '" MeI DOuI"'" . JII P<!n. h ••• tt;lt Pott Morestly .til lillltl: SlnjlaPOO'e q Syd""Y
30
Embed
Notice of Arbitration Australia I Hong Kong Agreement for the ...
This document is posted to help you gain knowledge. Please leave a comment to let me know what you think about it! Share it to your friends and learn new things together.
Transcript
'"~''' "
21 November 2011
The Han Robert McClelland MP Attorney-General for Australia c/- Australian Government Solicitor Lionel Murphy Building 50 Blackall Street BARTON ACT 2600 Fax: +61 2 6253 7333
By fax and courier Simon Daley Chief Solicitor, Dispute Resolution Australian Government Solicitor Level 42 MLC Centre 19 Martin Place SYDNEY NSW 2000 Fax: +61 2 9581 7778 Email: [email protected]
BY'email , fax and courier
Dear Attorney-General and Mr Daley,
Notice of Arbitration Australia I Hong Kong Agreement for the Promotion and Protection of Investments
Investor: Philip Morris Asia Limited
Aliens Arthu r Robinson
IOff JiII'd j()@ Hovse
I Connilughl Place Cen tral
Hong KOIIg
T +852 2840 12'02 . 13 F +-852 2840 0686 II •
.......w.<l.,...tOfTl .'U PI.
!JlI!,.,IIIJ:_II.- 1!l ....,...+ ..
We refer to Philip Morris Asia limited's written notice of claim dated 22 June 2011 .
Pursuant to Article 10 of the Agreement between the Government of Hong Kong and the
Government of Australia for the Promotion and Protection of Investments, and Article 3 of the
UNCITRAL Arbitratton Rules 2010, enclosed by way of service is a notice of arbitration dated 21
November 201 1.
Yours faithfully
Enel _ is 8~
~ 8~111"i
ot .... JII 8elli ne IP I!i .... 8m,baM .. .... lKafII!I ,",0 011 /0111>/1 CII)'
owned by Phinp Morris Brands Sari in respect of the Alpine, Longbeoch Bond Stroef
and Met/born brands,
(c) PML IS the owner ard exdus'Ve user in Australia of regiStered trade marks and other
industrial and Intel!ectua; property rights in respect of the Peter Jackson brand,
4,6 PMl has generated substantial goodwill from the \,se of the intellectual property on or in
relal10n 10 Philip ~Jlorris' tobacco products and packaging ("goodwUr), That inteheclua!
property underpins Philip Morris' entjre o'3nd portfolio and is at the core of PM Asia's
investments in Australia
Plain packaging and related legislation
4 7 The TPP Act was introduced to AU$lral:a's Foderal Parliamen! on 6 July 2011, was passed by
the House of Representatives on 24 August 2011, by the Senate wilh p>oposod
amendments on 10 November 2011, and again by the HOtls$ Of Represefltahves on 21
November 2011
48 The TPP Act is slated to come into force together with the 3ssocfat.ed Trade Marks
Amendment (Tobacco Plain Peckeging) Act 2011 (elh) eTMA Act"}" Australia also proposes
to promulgate the followlIig regulations under the TPP Act
(a) Tobacco Plain Packagif1g Regulations reiating to cigarettes; 1
{b} Tobacco Plain Packaging Regulations relating to non-cigarel:te tobaccO products,':!
(together, "TPP Regulations").
In this Notice. the TPP Act, TMt'\ Act and TPP Regulations shall be collectively reierted to as
"pialn packaging legislation"
4,9 In addi~\on to plain packaging legislation, the manufacture, marketng and sate of tobacco
products in Australia arc subject to extensive regulation at the CornmonwBallh, Slate and
Terntory levelS; mosl pertlnen1!y, Ihe Tobf:JCI~o Advertising PrOhibition Act 1992 \"1 AP Act").
4.10 The practcal effect of the TAP Act is that tobacco product packaging is the prinCipal remaini(lg
means by which PML COuld use the intellectual property to denote the origin of PML's tobacco
products to differentlale bel\Neen its own croducts, and to differentiate its products from
comr;elitors' products and illicit products.
4,11 Regulations made under section 65D of ihe Trade Practices Act 1974 (Cth)3 have required
since 1 March 2006 that cigarette packaging bear prescribed Qfaphic and text health wamings
cover:ng 90°/(1 of the back and 30% of the front of the pacKage, A new regulallon will mcn3ase
the size of :1103 graphic heallh wartHngs on the front of cigarette packaging from 30%, to 75"%
C'GHW ReguJatlon'}4 The GHW regulation itself is tantamount to plain packaging.
4,12 As its name makes clear, the purpose of plam packaging legislatiot) IS to eJiff\lnale branding.
Plain pack<1ging legislation appties to aU tobacco products and packaging of tobacco p"odLicts.
It prescribes every aspect of the appearance, size and shape of tobacco packaging, and in
...... _ ... _-, See Draft TobacQC Plain Ps<;kag;ng Re{fvl&I!OM 2011 pvl):l$hed on 22 Sept"mbOf 2011.
1 See Department vi Health nLo Ageing Consultation Paper' Tobacco Plam Pru:kaging P'Dpsed Approach 10 nOl)-cgZletlo
tcb"cco proouc:s~ ctatoo ;;0 September 201 ~.
:l If' 2010 II1C Tta~ PracifCl!:$ Acl1974 (Ch'>l was replaced by lhe ComOOfi/wll and Cor,so;mer Act lOW (Cth) and :h€- Aus!ro!ian Consumer Lew The reg:JlatOI1S deSOlbect herE remnin In fcree .
• The Hon Nicola Ro~_cn TPP fhd Second Reaol'lg Speecn p 4; DIBil C¢mpelltion 3110 Consumer (r obacco) .nformation
$liw,darQ 20 j" (i particdar Part 9 ()"',$,cn <1 pt!bMhod '14 Nov6€nl;ler 2011,
particular prohibits the use of trade marks, symbo!$, graphics or images on or in relation to
tobacco prooucts and packaging o1her than the brand, business or company name and Varia'll
name5 j(j slandard font and size in certain positions on 1obacco packagi'lg6 Plain packaging
legislation also prescribeS tM appearance of cigarette StiCks, manda!mg a specifjC co\our of
the wrapping paper and tip, and precluding the use of brand and variant names on ilidivldual
(c) licences and ol,,;er rights corferreC by law 0, under contract inc1udirg cQ"cessions
to manufacture, use or sell products
25. Accordi:lg!y, by virtue of its shareholdin9 in PM Au$lrjJiJi,t PM Asia owns andlor controls.a
number of investments in Australia that quahfy for protection of the substantive provisions
of L';e Hong K<:n;;!·Aus1raha B!T, sp€6fically:
(a) shares in PM AustJalla;
(b) shares in PM~; and
tel ;.he inlel!ectuol property god goodwill (together, the ~/nvestments").
Page 7
26. Article 10 of the Hong Kong·Austraf:a 81T ooncems settlement of dispv!e5 bebNeen an
jr;vestOl" Of one Contracting Party (sue'": as PM ASi$) and the other Contracting Party (here.,
A!Jstrar:a), Article- 10 provides:
A dfspvfe berNeeli an illVf.i!stOf of one Contr&ct.ln9 Pfirty and the othilr CommetinQ Perry COtrCf;rmng an investment of the former Ir, the area of the latter t/hich hus not 00€r: seWed amicably, s,'?aJi, after a period of three months from wri!tan norifi(;Qtion Of the c!v!m, be submitted 10 such procedures fer setfJemen! as may be agreed befWgen the purties to the di$putt'!, if no suCh procedures have been agreed withlf! that lhroe month peniX!, the p.f1rties to (,"Ie d!Sp'.Ile shall be bound W submit it 10 $rbtfntion l.Ir:der the Ar.Mratton Rules of the United A/alior:s Commission on interna(ional Trade LfiiVf as fPet> it! torce, The i'Jrbiln,lI trib'..l'l;;JI shaH have {XY'/"tet" Ie award in1eresi. The parties may agree in writing to modify those Ruj,;:$,
27 ,.1,s stated above, this Not;ce cf Claim :s "written nolific-;ltion" of PM ASIs's Claim pursuant to
Article 10
Contrave-I\~ton$ of the Hong Kong-Aunralia B1T
25 Plain packaging legislation ano Ihe GHW regulation jointly and severaFy contravene the
svbstantive 9.oteci'lJns 11 the Hong Kong-Australia 81T in lhat they exprcp·riate the
Irwest;nents, e.e unfair and inequitable, unreawnably impaIr Vie use of the Investmenis,
amount ic a f$l1ufe to afford full projection and seOJrity for the In ... eslTlHttnts and contravene
obllgatio:,s Australia has Entered mto with regard to inve-stments of investors, specifically
international trade treaty obtgat~ns. Trlese con;raventicns derive from the ciegree to wbich
plah packaging legislation and the GHW reg'~jation interfere with in", Investments, the lack
of credible evidence (hat pial;) packag),-,g legislatloo wlli achtwe its stated goals. and
violi3tior of 1m:ema1Jonal trace ~reatie$ by plain packaging legisia:iw. These factQrs are
aoOfessed belew fcllowed by an explana:ioo of !he specific ron\raventions of the Hcng
Kopg-Auwa!l$ erT,
29_ V\i"ile PM Asi?o ooes not oeny Awsi",,'(i$ its sovereign rlghl to !egislate, its treat' I o!:;i'gations
(such as pursuant \0 the Hong K-ong-Av$tr$lIa Bfi) fel~er Its discretion: 'I canno: breach !h~
Hong Kong-Australia BIT w,thovt CQnsequences.
tal Genera! factors: interference with PM Asia's Investmenw, lack of cre<tible evidence and violation of international l,.w
3C PI1\\P Mcrns uscs the intellectual prooerty and goodwil! to manufacture, market and
cfstribute for sale tobacco products, pli1lt:ipatly cigarettes, In Austrai!a and elsewhere il"l
accordance with all 8;:;plicable laws end tegu.mions.
31 The manufacture, rr,arke"ting and sa!e of tobacco products in Australia is already subje:::: to
extenSlve regulation at L-;e Commonwealth. Slate and Territory' levels; most pertinetltly. !he
Tobacco Advertising Prohibition Act 1992 r TAP Act}. The practical effect of the TAP Act
(s that tobacco packag'ng is the priocijXli remaif)ing means by which PhHip Morris con
vtilise the inteiJectual prOpe"1y. Plair; packaging le9is~ation and the GHIlJ n:gu!ation wll!,
jointly and seWR~lly, effectively prohibit ihe use of the intellectual property on Of in relation
to tobacco products and packaging \\'ith the exception of the orand (tame Ii' govemmen!
mandated font and ~ size thereby shipped of vIW;.<lly all teCOgf"iUO:;. Philip Morris'
business in AvstrnFe wil' be severely affected as a result.
32 The intellectual property plays a critica! part in distinguishing Philip Wtorris' products ftom
competitors' proCuC'$ an6 inieii products, Ovef time. the USB of intellectua! property on or;r;
re<ation to Philip Morris' products has contnbuterl to the I;;eneration of swbstantal goodwiii
In respect c: those products. Phili9 U!OIT1S' busmess in Australie and elsewhere ;$ Dvil! on
the recogr !ion of Its txands and me consequent commercial advan~age that recognition
brings. PML'$ Brands have a hl$10ry spanning more than 50 years. Some of the Brands, for
exam;>le, Marlboro and Peter JaCkson have reached IconiC stuius among consumer
brands. Philip tJ'oOrris and lis affiliates In Australia and wO!1dwlde make every effort to
deprives PML 01 the inlellectlJal proPorlY end the commercia! utility of its Brands: this is the
cen\ral pwrposa of the legisl03lion. Irresoective of whel:hw lega: title to the ir,telleciusl
pmperty is affectec by plain packaging lefIislsticn, PML's brandS will effectively be
eliminated The co~mercial value of the mteHectua! ;roperty and the goo::twill generated by
the mtel!ectIJal property is substantially destroyed. This in tum effects tM value or PM
A\..$tralla and PML In a <devastating manneL
34 'y\(thaut branding, PMl'$ products are "oi readily distinguishaoie to the co(r$ume. from the
products of its competitors: consequently. competition wi!! be based primarHy on pt;ce. PML
is. rec:Jced from a ma'1vrnctIJ[er of b'1;wded products to that of a manufactwrer of an
effectively wndifferentiated ccfl'.modijy. Ttlis is an entirely different enlerprise and business
model to tr,at currently pursued by PMl; the s,lierprise WiJ be slgnrncantly impaired given
the expected loss in .. alue 0-: :he business.
35 The sttlted purpose of plalll packaging legislation is, esssntiBI'y, to reduce smoking
prevalence.8 rewever, there is no credible evidence thvt plai(l packaging ~H reduce
smoking prevalence, /V<oreo-ver ihe Hkely .educt:on of price .and likely increaSe In
.availability and relative desirabdity of cheap lmcit icbacco prod.Jcts mean the measure may
be couoter-produetiv-e. ~e (X)f1Ijeciian bt;:>,veen plain pac-.;aging arc reduce<! smoking
p(e>ta~ence !S spOO1latlVe at best; the GOVernment is legiSla1ing without regard to credible
evidence,
36. The Government has choS6(> It: p:ssue thIS course regardless of the existence of ether
means of reducing smok:ng ;:revaience, BS the Government itself highlighted in t:>e 2009
Natiol'al Preventative HeaHh TasXforce r€9ort9, that do not curtail the proparty rghts of
tobacco manutactoren; Coupling plall1 packagil'l9 10 clt:er ant1~:smoking ;"it stlves does not
remedy the fset that ('>ere 1$ a laCk of credible evidence that plain ~cka9ing will reduce
smOki;"!g prevalence,
37, P:ain packaging legislation contravenes Aus1:ralie's onfigelions vncier international trade
tre<;tie<;, In part\CIJlar TRIPS (to wt<;ch Austraiia has been e pMl' since 1 JBnVal)' 1996)
which expliCitly incorporates the minimum standards of protectlO:'l providoo for trade marks
by the Paris COnvention (to ',vhich AusutlHa has been a party $iIiOO 10 October (925) and
also provides further protectioos; am:! the TaT (to which !\USlr3118 l)as been:$ P&rty $'''ce
1 January 1995)"
38, Most pertinenUy, AJiioe 20 of 'TRIPS ;xov;des that:
"The use of a !rademark /(1 the course of trade si')sli 1101 be unjustifiably encumbered by speci»/ reqUiremems, suCh 8:$ use wilh another trademark, U$e if) iJ special form or USB ill '" manner deJ.rimenlai to its Ci;lpabffily to dislinguish the goods 01" ~ces of Oflll undertaking from those of other undel1akings,"
39 P!6in packaging legislation encumol?rs PML '$ lfade marKs in an I,mj:Jstinab:e wey in that the
I~ $Jalior. requires LSB in a BpSCil;li form, 3"0 it is dearly de:rimsntsl - significantly 50 - to
the capabjjjty of PMl's trade marKS to distinguiSh ?hilip Morns' products from \r..e products
of othl$f tobacco manufacturers: a matter thel goes (0 the heart of the p!Jr;Joss of a trade
malic There is M excePtion or carve out for tobacco trade marks.
4(). AI1jc\e 2{2} of TST orohlbits technical regulations that crBete obS'.3cles to intem:>lionaJ
trade that are more \r<IChNesttictlve !;."lan necessary 10 aChieve a legitimate objective such
as human health. Plain packagi."glegI5Jatron is a tecr,niea< regul<ltion Mat i5 no! oecsssary
to fwlfili the objective of pro:ecLon of human health: t':lere Is no cr¢d!ble> e'iidence that it wiH
reduce sfnoking prevalence, and there !$ evld"mce to sUggest that ;1 may have an adverse
effect on that objective. Neither is p'ain packa9ing legisla1ion a "neoe-s$$ry" obsiacie in the
sense th$( other, Jess rest'ictive, meaS\.J~$ arc available to Austrslia to achieve Its pL<blic
health ODjectives in at: e""leCliv.e manner.
41, ArtiCle 7 of the Paris Convention and Article 15(4) of TrtlPS provide 1M! lhe 03ture Of the
900:.1s or services to whicr, a trade marl< is te be applled shall no! forJ?1 an obstacle to the
regl~1.wtion of a r:la:i(, P!$in packaging legislation dictates that the nature of the gOOd forms
an obstacle :0 :he use of the mark, "usc" being a notion IMXlJicably linked to re.gistiation
:here is no purpose :0 reglstrdtior wi\t1:Qu\ a corresponding right to use. Similarly, Article IS
quinqui€$ (B) of the ;::>gns Con'i~-,f,O.- provides that trade marks registered it, any States
which are. COnll.'.lcti<:9 ?$r1.iS$ 10 the Paris Convention cannot be denied registration or
mvalidaled except for o'le or more Qf Uwze very narrovfly def:ned reasons. none of whiCh
are app':cable in the context Of tobacco lfade ma,rks,
42, ACCOrdingly, in 311 the above weljs, plain packaging legislat:cl'l contravenes Aust~tia'$
Obl;gat'Otls pursuant to irrter_1atlorwl trade treaties. Neither the Fram8'Jlork Convention on
Tobaccc Control no" \Is Gulcelines mandate measures that COntravene Ihese fundamental