Summary

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Case report (free download)

Case Report by Marina Kofman and Erika Williams, editor Ignacio Torterola

Summary

Claimant brought a claim against Respondent under the bilateral investment treaty between Hong Kong and Australia in respect of Respondent's introduction of legislation mandating the plain packaging of tobacco products. Claimant undertook a restructure in 2011 whilst Respondent was considering the introduction of plain packaging measures. Following the restructure, Claimant became the sole shareholder of the Australian entities which were a part of the global group of companies. The Tribunal found that Claimant's restructure was for the principal, if not the sole, purpose of gaining protection under the Treaty. The Tribunal held that the claims were inadmissible and it was precluded from exercising jurisdiction over the dispute.

Main Issues

Jurisdiction - control - admission - ratione temporis (temporal jurisdiction) - abuse of rights - legal test for establishing a 'dispute' - foreseeability of dispute in corporate restructuring cases - bad faith - burden of proof

Philip Morris Asia Limited v The Commonwealth of Australia (PCA Case No. 2012-12) Award on Jurisdiction and Admissibility, 17 December 2015

Case report provided by International Arbitration Case Law (IACL)