More countries have asked to be third parties in the
proceedings than in the long-running banana war between the EU
and a number of Latin American countries.
Director-General Roberto Azevêdo this week appointed
three panellists to consider the plain packaging issue after
the six countries at the centre of the row –
Australia, Ukraine, Indonesia, Cuba, Dominican Republic and
Honduras – failed to agree who should examine the
The panel will be chaired by Alexander Erwin of South
Africa. The other two members are François Dessemonted
of Switzerland and Billie Miller of Barbados. The parties will
make written and oral representations to the panel, which must
finalise its report within six months.
The panellists will decide whether they think
Australia’s tobacco plain packaging laws breach
the trade organisation’s rules before the end of
Five panels have been established to consider the complaints
made by five countries about Australia’s decision
to force tobacco companies to sell their products in so-called
plain packaging. The same three panellists will head each panel
after the parties agreed to a harmonised procedure.
Although each of
the complaints target Australia’s plain packaging
rules, they are not exactly the same. Ukraine’s
deals with "certain measures concerning trademarks and other
plain packaging requirements applicable to tobacco products and
packaging" while the rest also invoke the WTO’s
rules on geographical indications.
come shortly after Australia complained that the unresolved trade
row was having a chilling effect on other countries that
are considering introducing similar constraints on the way that
tobacco is packaged. Ukraine requested consultations with
Australia under WTO procedures more than two years ago.
New Zealand has
already said that it plans to follow Australia’s
lead, and the UK government said last month it will introduce
plain packaging following a review.
If the panel
decides that plain packaging does breach WTO trade rules, it
recommends how the measure should be changed. Its report
becomes the Dispute Settlement Body’s ruling or
recommendation within 60 days unless a consensus rejects it. If
one or more party appeals, the appeal is heard by three members
of the WTO’s permanent seven-member Appellate
Body. It has up to 90 days to uphold, modify or reverse the
panel’s legal findings and conclusions. The Dispute Settlement Body
has to accept or reject the appeals report within 30 days
— and rejection is only possible by consensus.
You can read an article by lawyers from Bird & Bird and
Truman Hoyle on plain packaging in the latest issue of