Costs Awards by International Courts and Tribunals: Key Lessons from Philip Morris V. Australia

By Tully, Stephen | Australian International Law Journal, Annual 2017 | Go to article overview

Costs Awards by International Courts and Tribunals: Key Lessons from Philip Morris V. Australia


Tully, Stephen, Australian International Law Journal


I Introduction

In 2017 at Singapore, a second and final award regarding costs was issued by an arbitral tribunal constituted pursuant to a 1993 Hong Kong-Australia investment treaty. Australia had been a respondent in arbitral proceedings conducted under the auspices of the Permanent Court of Arbitration (PCA) in accordance with Rules of Arbitration formulated by the United Nations Commission on International Trade Law, as revised in 2010 (the 2010 UNCITRAL Rules). The claimant, Philip Morris Asia Limited (PM Asia) was a limited liability company incorporated under Hong Kong law. PM Asia had commenced arbitration under a bilateral investment treaty challenging Australia's enactment and enforcement of legislation requiring all tobacco products manufactured and sold in Australia to be in plain packaging.

The costs award issued in Philip Morris Asia Limited (Hong Kong) v The Commonwealth of Australia (Philip Morris v Australia) is explained in Part 1 of this article. The background to the dispute, the parties' contentions and the tribunal's essential findings and conclusions are described. Part 2 reviews some of the key implications of this costs award in light of recent trends in international commercial arbitration and investment treaty arbitration as well as the established practice of significant international courts and arbitral institutions. Reference will be made to relevant provisions of national and international law. This article contends that, considered overall, the award in Philip Morris v Australia is broadly consistent with comparable precedents. In the particular circumstances of this case, an award of costs which followed the event and made in favour of the prevailing party was moderated by comparative success and the reasonableness of Australia's claimed costs.

II The Costs Award In Philip Morris v Australia

A. Background (1)

Australia's federal Parliament adopted the Tobacco Plain Packaging Act 2011 (Cth) and Tobacco Plain Packaging Regulations 2011 (Cth) to discourage the use of tobacco products and for related purposes. This measure sought to improve public health and give effect to Australia's obligations under the Framework Convention on Tobacco Control. (2) Australia had ratified this treaty in 2003. (3) The treaty requires State parties to adopt and implement effective measures concerning the packaging and labelling of tobacco products, including health warnings and other messages. (4) Each party must comprehensively ban all tobacco advertising, promotion and sponsorship in accordance with their constitution. (5) A suite of measures was proposed to give effect to these obligations, including plain packaging. (6) In 2009 a federal taskforce recommended that Australia mandate the sale of cigarettes in plain packaging and increase the size of graphic health warnings. (7) During April 2010 plain packaging measures were implemented. Australia's legislation prohibits the display on tobacco products and their packaging of all tobacco company logos, symbols and other images that may have the effect of advertising or promoting tobacco products. All tobacco packaging must have a dark olive brown matt finish, as well as display specific text and graphic health warnings.

PM Asia contended that these steps expropriated its Australian investments and breached specific commitments made by Australia under a bilateral investment treaty, being an Agreement between Hong Kong and Australia. (8) That Agreement by its preamble seeks to create favourable conditions for greater investment (9) by the investors (10) of one State into the area of the other. Australia and Hong Kong must not deprive investors from each other State of their investments or subject them to measures equivalent to deprivation, except under due legal process for a public purpose related to the host State's internal needs, on a nondiscriminatory basis, and accompanied by compensation. (11 ) Fair and equitable treatment must be accorded to investments and investor returns as well as their full protection and security. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

Costs Awards by International Courts and Tribunals: Key Lessons from Philip Morris V. Australia
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this article
  • Highlights & Notes
  • Citations
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.