The WTO battle over plain packaging: what happens next?
Managing IP is part of the Delinian Group, Delinian Limited, 4 Bouverie Street, London, EC4Y 8AX, Registered in England & Wales, Company number 00954730
Copyright © Delinian Limited and its affiliated companies 2023

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

The WTO battle over plain packaging: what happens next?

Last week Australian judges gave the green light to a law to introduce plain packaging for tobacco. Now Ukraine has requested the WTO assemble a panel to hear its dispute against Australia’s plan. As the legal challenge shifts from Canberra to Geneva, what happens next?

I’ve heard all about the Australian High Court’s ruling upholding Australia’s plain packaging law. But what’s happening at the WTO?

In March this year Ukraine launched legal proceedings at the WTO over Australia’s plans to force tobacco companies to sell cigarettes in plain packs. Its representative in Geneva requested consultations with Australia, the first step in a legal dispute at the trade body. The Ukrainian government argues that Australia's Tobacco Plain Packaging Act 2011 and its Trade Marks Amendment (Tobacco Plain Packaging) Act 2011 violate the TRIPs Agreement and GATT, the umbrella agreement covering trade in goods. Honduras and the Dominican Republic later requested consultations of their own.

Why Ukraine? Does it export a lot of tobacco?

No. It’s something of a mystery why the country would launch a complaint.

So what’s happened now?

A spokesman for the WTO has confirmed that Ukraine has stepped up its campaign against the Australian law. Last week it requested that an item be added to the agenda of the next meeting of the Dispute Settlement Body to set up a panel to hear its dispute. That meeting is due to take place on August 31 and agenda for the meeting is set to be published tomorrow.

Who has to agree?

Australia needs to agree to a panel being set up. It can only deny Ukraine’s request once however, so if, as is normally the case, it rejects the request at this month’s meeting, a panel will likely be set up following the September meeting of the Dispute Settlement Body.

What about Honduras and the Dominican Republic?

If they request a panel be set up, there’s a strong chance that it could be merged with the panel requested by Ukraine, as long as a long period of time hasn’t elapsed between the requests.

What’s the timetable?

Once a panel has been set up – which will be made up of three independent panellists – it has six months in which to report to the parties. One or both parties can appeal, and the appellate body has between two and three months in which to report back. If Australia’s law is ultimately found to breach WTO rules, and Australia refuses to change it, its goods could be the subject of sanctions from Ukraine, or the other two complainants, if they are successful.

What is Australia’s reaction to the Ukrainian request for a panel?

“Australia will strongly defend its right to regulate to protect public health through the plain packaging of tobacco products,” Craig Emerson, the country’s trade minister, said today. “The Government is confident that its plain packaging legislation is consistent with Australia’s WTO obligations.”

more from across site and ros bottom lb

More from across our site

Breton is commissioner for the internal market in the EU at the European Commission
Kupecz is a judge at the UPC Central Division in Germany
Hakki is senior partner at Shearman & Sterling in the US and Dejonghe is senior partner at Allen & Overy in London
Jaramillo is health minister for the Colombian government
Birss is a judge at the England and Wales Court of Appeal in London
Ragot is general counsel at Christian Louboutin in France
Connolly is chief judge of the District Court for the District of Delaware
Meikle is the chief executive at the Commerce Commission in New Zealand
Mishra is chairman at The Bar Council of India
Musk is the founder of X Corp in the US