25 May 2016

The most important legal case of this year was published last week. You've probably never heard of it.

The title of this post seem a bit click-baity, but it's not an exaggeration. The case that I'm going to discuss has a direct effect on Australia's public health efforts to require plain-packaging for tobacco products, will have a similar effect on other such efforts in other countries, and will have downstream effects on regulatory efforts on public health, environmental, and human rights issues around the world.

But here's the thing: this case isn't a US Supreme Court case, it's not a case from any of the European Union courts, and it's not even a case from the International Court of Justice. In fact, it's not a court case at all. It's a decision reached by a panel of three arbitrators, which is subject to little to no appellate review, and which is enforceable around the world.

For clarity: yes, I did just say that the most important legal case of this year is the product of arbitration proceedings rather than any national or international court; and no, I am not exaggerating.

There's an obscure area of international law that permits corporations to force countries into arbitration when the corporation believes that they have been unfairly and inequitably treated by the country, or when they think the country has taken their property without paying fair compensation. Corporations have been using this area of law to challenge public health and environmental regulations. The decision in this case may make it a little harder, and more risky, for corporations to do this in the future.

The case is: Philip Morris Asia Ltd. v. The Commonwealth of Australia, and is part of Philip Morris' ongoing efforts to fend off increased regulation of tobacco products.

I'm going to do my best to explain this case, and why the case is so massively important, as clearly and simply as I can. I'm going to simplify the living crap out of everything, drop as many of the boring and obscure technical details as I possibly can, and I can promise you that this is probably still going to bore the everliving shit out of most of you. But please try to stay with me anyway.  It's one of those areas where there's a lot of scary stuff hidden behind all the boring.