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Philip Morris challenged Australia's anti-smoking laws and lost, in what may be the WTO Appellate Body's final decision.
I read the gargantuan 1,264-page panel report and 327-page appellate report so you don't have to.
Here are my main takeaways: https://medium.com/@toddntucker/wto-tobacco-industry-ruling-marks-end-of-an-era-2df6ee3d618
I read the gargantuan 1,264-page panel report and 327-page appellate report so you don't have to.
Here are my main takeaways: https://medium.com/@toddntucker/wto-tobacco-industry-ruling-marks-end-of-an-era-2df6ee3d618
1. The case was a fitting bookend to 25 years of the Appellate Body. While the US Congress was promised the WTO would not intrude into sensitive non-trade domestic regulations, this was predictably not how things played out.
The AB's very first decision was against aspects of the US Clean Air Act.
For its last to tackle public health is a bit on the nose.
(The Trump administration (with bipartisan support) has held up the filling of AB vacancies, so its work has ground to a halt.)
For its last to tackle public health is a bit on the nose.
(The Trump administration (with bipartisan support) has held up the filling of AB vacancies, so its work has ground to a halt.)
2. The case - directly bankrolled by Big Tobacco - marks a disturbing coda to a trend of increased corporate involvement in what should've been a purely intergovernmental forum. @gregorycshaffer and @ryan_brutger have written a lot on this. https://www.fairwarning.org/2012/11/as-nations-try-to-snuff-out-smoking-cigarette-makers-use-trade-treaties-to-fire-up-legal-challenges/
3. The near-record length of the ruling caps off years of excessive legalization of panel/AB proceedings. For comparison, the first dispute had a 52-page panel report and 30-page appellate report. Lots of reasons for this, including this by @snlester https://ielp.worldtradelaw.net/2020/02/ustrs-report-on-the-appellate-body.html
4. Yes, Australia actually won this case, so in that sense, the right outcome prevailed.
However, the panel's path to that conclusion was highly tortured - at one point appearing to concede that anti-smoking rules should be subject to randomized control trials. It's hard to think of a more neoliberal idea than that. (ht @sanjaygreddy). https://foreignpolicy.com/2019/10/22/economics-development-rcts-esther-duflo-abhijit-banerjee-michael-kremer-nobel/
In short, the case is Exhibit 1 in why the WTO provides exactly the wrong focal points for the current era, when resilience and de-carbonization should be our priorities.
Here's me for @ProgIntl on alternative ideas for governance that meets the moment: https://progressive.international/blueprint/fff9daea-4a91-4de6-9865-b9607912de53-todd-tucker-the-green-new-deal-has-an-international-law-problem/en
Here's me for @ProgIntl on alternative ideas for governance that meets the moment: https://progressive.international/blueprint/fff9daea-4a91-4de6-9865-b9607912de53-todd-tucker-the-green-new-deal-has-an-international-law-problem/en
I will never get back the hours it took to wade through these two WTO decisions. It pales in comparison to what the various government attorneys had to expend — hours that (in a just system confronted with such a frivolous case) Philip Morris would be required to pay for.
