FAIR AND EQUITABLE TREATMENT STANDARD IN TOBACCO CONTROL DISPUTES IN LIGHT OF PHILIP MORRIS SARL V URUGUAY CASE: IMPLICATIONS AND LESSONS TO TOBACCO REGULATION IN UZBEKISTAN

Abstract

Modern international investment agreements (IIA) provide for fair and equitable treatment (FET). The FET is a crucial investment protection standard of IIAs that safeguards investors’ interests and it has often, and mostly successfully, been invoked by investors. At present, FET is the most important standard in investor-State dispute settlement (ISDS) cases. Some investors have invoked this standard in tobacco control concerned cases as well. Tobacco control means a range of supply, demand and harm reduction strategies that aim to improve the health of a population by eliminating or reducing their consumption of tobacco products and exposure to tobacco smoke. Philip Morris, a tobacco manufacturing multinational company, challenged the tobacco control regime twice in the last ten years, through investment arbitration against Australia and Uruguay. In Philip Morris v Australia, the arbitral tribunal denied its jurisdiction. On the other hand, Philip Morris SARL V Uruguay reached the merit phase, but the investor’s claims were dismissed by the tribunal. Both attempts failed on the grounds of the protection by the host countries of public health. However, the claims by Philip Morris based on the FET standard may be worth further analysis, because a similar dispute may arise with regard to Uzbekistan.