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Published online by Cambridge University Press: 20 January 2017
1 Philip Morris Brands Sárl v. Oriental Republic of Uru., ICSID No. ARB/10/7, Decision on Jurisdiction (July 2, 2013), at https://icsid.worldbank.org [hereinafter Decision]. The arbitral decisions cited herein are available online at http://italaw.com.
2 Agreement on the Reciprocal Promotion and Protection of Investments, Switz.-Uru., Oct. 7, 1988, Recueil officiel du droit fédéral 1810 (1992), available at http://www.admin.ch/opc/fr/classified-compilation/19880218/ & http://www.sice.oas.org/Investment/BITSbyCountry/BITs/URU_Switzerland_f_pdf (both in French). English translations of provisions of the BIT below are those of the arbitral tribunal.
3 Uruguay’s Memorial on Jurisdiction and Reply on Jurisdiction are available online, together with an expert opinion prepared by Dr. Todd Weiler on behalf of Physicians for a Smoke Free Canada (not a party to the proceedings), at http://italaw.com/cases/460. The claimants’ filings are not publicly available.
4 World Health Organization Framework Convention on Tobacco Control, May 21, 2003, 2302 UNTS 166, available at http://www.who.int/fctc/en/ [hereinafter WHO Framework Convention].
5 The decisions that the tribunal relied upon were Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croat. v. Serb.), Preliminary Objections, 2008 ICJ Rep. 412, para. 87 (Nov. 18), and Mavrommatis Palestine Concessions, 1924 PCIJ (ser. A) No. 2, at 34 (Aug. 30).
6 Article 2(1) of the BIT, quoted in Decision, para. 163, provides in pertinent part:
Each Contracting Party shall in its territory promote as far as possible investments by investors of the other Contracting Party and admit such investments in accordance with its law. The Contracting Parties recognize each other’s right not to allow economic activities for reason of public security and order, public health or morality....
7 Article 2(2) of the BIT, quoted in id., provides in pertinent part that “[w]hen a Contracting Party shall have admitted... an investment on its territory, it shall grant the necessary permits in connection with such an investment.”
8 Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, Mar. 18, 1965, 17 UST 1270, 575 UNTS 159 [hereinafter ICSID Convention]. Article 25(1) of the Convention provides in pertinent part: “The jurisdiction of the Centre shall extend to any legal dispute arising directly out of an investment....”
9 Salini Costruttori S.p.A. v. Kingdom of Morocco, ICSID No. ARB/00/4, Decision on Jurisdiction, para. 52 (July 23, 2001), 6 ICSID Rep. 400 (2004),42 ILM 609 (2003) (citation omitted) (stating that “investment infers: contributions, a certain duration of performance of the contract and a participation in the risks of the transaction. In reading the [ICSID] Convention’s preamble, one may add the contribution to the economic development of the host State of the investment as an additional condition.”).
10 Vienna Convention on the Law of Treaties, Art. 31(1), May 23, 1969, 1155 UNTS 331 [hereinafter Vienna Convention].
11 Cf., e.g., F-W Oil Interests, Inc. v. Republic of Trinidad and Tobago, ICSID No. ARB/01/14, Award, para. 212 (Mar. 3, 2006) (“[E]conomic development is after all the purpose which Bilateral Investment Treaties and the World Bank itself were created to serve.”).
12 Philip Morris Asia Ltd and Commonwealth of Australia, Notice of Arbitration (Nov. 21, 2011); Philip Morris Asia Ltd and Commonwealth of Australia, Australia’s Response to the Notice of Arbitration (Dec. 21, 2011). Documents regarding the arbitration are available online at http://www.ag.gov.au/tobaccoplainpackaging, and for those pertaining to the proceedings now under way, at the website of the Permanent Court of Arbitration, http://pca-cpa.org.
13 Article 11(1) of the WHO Framework Convention, supra note 4, obligates each party, within three years, to adopt effective measures to prevent false packaging, include warnings on the package, and ensure that the warnings cover 50 percent or more of the display area.
14 Vienna Convention, supra note 10, Art. 31(3)(c).
15 See, e.g., McLachlan, Campbell, The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention, 54 Int’l & Comp. L.Q. 279, 318–19 (2005)CrossRefGoogle Scholar; International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, UN Doc. A/CN.4/ L.682, para. 420 (Apr. 13. 2006) [hereinafter ILC Report].
16 There has been some debate as to whether both parties must be parties to the treaty for an interpretation under Article 31(3)(c). see Panel Report, European Communities—Measures Affecting the Approval and Marketing of Biotech Products, para. 7.68, W T/DS291–293/R (Sept. 9, 2006) (adopted Nov. 21, 2006) (suggesting that both parties must be parties to the treaty); cf. McGrady, Benn, Fragmentation of International Law or “Systemic Interpretation” of Treaty Regimes: EC—Biotech Products and Proper Interpretation of Article 31(3)(c) of the Vienna Convention on the Law of Treaties , 42 J. World Trade 589, 590 (2008)CrossRefGoogle Scholar. In any event, as a signatory to the Convention, Switzerland would be “obliged to refrain from acts which would defeat the object and purpose” of the Convention. Vienna Convention, supra note 10, Art. 18.
17 International Covenant on Economic, Social and Cultural Rights, Art. 12, Dec. 16, 1966, 993 UNTS 3. Under Article 12, the states parties “recognize the right of everyone to the enjoyment of the highest attainable stan dard of physical and mental health” and shall take steps “to achieve the full realization of this right... includ[ing] those necessary for:... [t]he prevention, treatment and control of epidemic, endemic, occupational and other diseases.” Uruguay ratified the Covenant on April 1, 1970, and Switzerland ratified it on June 18, 1992.
18 Committee on Economic, Social and Cultural Rights, General Comment No. 14 (Article 12 of the Covenant), para. 33, UN Doc. E/C.12/2000/4 (Aug. 11, 2004) (“The right to health, like all human rights, imposes three types or levels of obligations on States parties: the obligations to respect, protect and fulfil.... The obligation to protect requires States to take measures that prevent third parties from interfering with article 12 guarantees.”).
19 Samson, Mélanie, High Hopes, Scant Resources: A Word of Scepticism About the Anti-fragmentation Function of Article 31(3)(c) of the Vienna Convention on the Law of Treaties, 24 Leiden J. Int’l L. 701, 712 (2011)CrossRefGoogle Scholar; see also Villiger, Mark E., The Rules on Interpretation: Misgivings, Misunderstandings, Miscarriage? The ‘Crucible’ Intended by the International Law Commission, in The Law of Treaties: Beyond the Vienna Convention 105, 112 (Cannizzaro, Enzo ed., 2011)Google Scholar. But see Electrabel v. Hungary, ICSID No. ARB/07/19, Decision on Jurisdiction, Applicable Law and Liability, para. 4. 130 (Nov. 30, 2012).
20 ILC Report, supra note 15, para. 423 (footnote omitted); see McLachlan, supra note 15, pp. 280–81.
21 See, e.g., Micula v. Romania, ICSID No. ARB/05/20, Decision on Jurisdiction and Admissibility, paras. 87–88 (Sept. 24, 2008) (considering the Universal Declaration of Human Rights); Romak S.A. v. Uzbekistan, Award, PCA No. AA 280 (Uncitral Arb. Trib. Nov. 26, 2009) (considering provisions of a trade treaty); United Parcel Serv. v. Canada, Award and Separate Opinion, paras. 114–20 (NAFTA Ch. 11 Arb. Trib. May 24, 2007) (considering World Customs Organization’s Kyoto Convention).
22 See, e.g., Oil Platforms (Iran v. U.S.), 2003 ICJ Rep. 161, 279 (Nov. 6) (sep. op. Buergenthal, J.) (“[A] State that has submitted itself to the Court’s jurisdiction for the interpretation of one treaty would suddenly find that it has opened itself up to judicial scrutiny with regard to other more or less relevant treaties between the parties to the dispute that are not covered by the dispute resolution clause of the treaty which conferred jurisdiction....”).
23 See, e.g., Richard Gardiner, Treaty Interpretation 186 (2008). Although preambles are often regarded as a component of the “object and purpose” under Article 3 of the Vienna Convention, commentators have noted the difficulties in relying on them as an interpretative tool.See, e.g., Fitzmaurice, Malgosia, The Practical Working of the Law of Treaties, in International Law 172, 187 (Evans, Malcolm D. ed., 3d ed. 2010)Google Scholar (“‘[I]n the light of its object and purpose’... is a vague and ill-defined term, making it an unreliable tool for interpretation.”).
24 Root, Elihu, The Basis of Protection to Citizens Residing Abroad, 4 AJIL 517, 526–27 (1910)CrossRefGoogle Scholar. This view is consistent with the Roman maxim ignorantia juris non excus at (ignorance of law is not an excuse/defense).
25 See, e.g., Alasdair Ross Anderson v. Costa Rica, ICSID No. ARB(AF)/07/3, Award, para. 52 (May 19, 2010).