This special edition of Talking Disputes series discussed the recent arbitral award in the investor-state dispute Philip Morris v. Uruguay (ICSID Case No. ARB/10/7).
This case was filed by Swiss and Uruguayan subsidiaries of the tobacco giant Philip Morris International (jointly referred to as “Philip Morris” or the “Claimants”) in 2010, on the basis of the 1988 bilateral investment treaty (BIT) between Switzerland and Uruguay and the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention).
In this dispute, Philip Morris took issue with Uruguay’s tobacco control measures including a single presentation requirement that allows only one variant of cigarettes per brand family and also the requirement of increasing the size of graphic health warnings from 50% to 80% appearing on cigarette packages.
In its July 2016 award, the tribunal held that a trademark holder does not enjoy an absolute right of use, free of regulation, and that the use of trademark in commerce is subject to the state’s regulatory power. The tribunal ultimately found that the measures were a valid exercise by Uruguay of its police powers for the protection of public health, and cannot constitute an expropriation of Philip Morris’ investment. The arbitrators also found no violation of the “fair and equitable treatment” requirement under the BIT. The tribunal considered among other issues that the World Health Organization’s Framework Convention on Tobacco Control (FCTC) is a point of reference on the basis of which one could determine the reasonableness of the measures. The tribunal also dismissed Philip Morris’ other claims and ordered the Claimants to pay Uruguay $7 million as reimbursement of legal expenses.
Venue: Room C1 (Petal 5), the Graduate Institute, Chemin Eugène-Rigot 2, 1202 Geneva
Registration: Registration is mandatory. (Registration is now closed.)
Webcast: This event was streamed live online on the event page.
[The views and opinions expressed in the event are those of the experts and do not necessarily reflect those of ICTSD and WTIA.]
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On 6 September, Professor Jacques De Werra presented his contribution to the second CEIPI-ICTSD issue paper on “Specialised Intellectual Property Courts – Issues and Challenges” at the 11th WIPO Advisory Committee on Enforcement (ACE).
De Werra, vice-rector and professor of intellectual property and contract law at the University of Geneva, presented his contribution to the second issue of the joint publication series on “Global Perspectives and Challenges for the Intellectual Property System” at ACE 11. He addressed the advantages and disadvantages of relying on specialised intellectual property courts, arguing that there is no “one-size-fits-all” solution, given the role that other factors may play in the outcome. These factors can include, for example, differences in legal or economic systems at the national level. His presentation covered what it means for an IP system to be “balanced, holistic and effective”.
De Werra’s contribution set the tone for subsequent presentations of country-specific examples, including those from England, Pakistan, Portugal, Russia, South Africa, and Thailand.
The ACE was established in 2002 by WIPO’s General Assemblies, with the mandate to carry out technical assistance and coordination in the field of IP enforcement. The committee’s work does not include norm-setting.