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DISPUTE SETTLEMENT AND TOBACCO CONTROL: IMPLICATIONS FOR NON-COMMUNICABLE DISEASES PREVENTION AND CONSUMPTION-CONTROL MEASURES

Public health advocates and policy makers have long considered how to translate the successes of tobacco control measures to address alcohol abuse and the excessive consumption of ultra-processed and nutrient-poor foods. Correspondingly, the strategies adopted by tobacco companies to prevent or delay regulation often parallel those adopted by the alcohol and food industries. Philip Morris, a leading tobacco company, has recently used investor–state dispute settlement (ISDS) mechanisms as a new strategy to hinder or prevent tobacco control measures in the form of plain packaging requirements. The cases that followed may have implications for the development of novel consumption-control measures, like plain packaging laws, aimed at preventing non-communicable diseases such as cancer and cardiovascular disease. This paper considers how the challenges to tobacco control measures through ISDS mechanisms could affect the development of consumption-control measures aimed at reducing alcohol abuse and unhealthy food consumption for non-communicable disease prevention. Using the recent ISDS challenges by Philip Morris as case studies, this paper draws out lessons and issues for the future development of consumption-control measures. control, control and dietary-related regulations to show how the these risk has in both different and similar ways.


INTRODUCTION
Investor-state dispute settlement ('ISDS') provisions in investment treaties allow foreign investors to use international investment dispute settlement processes against a host government in particular circumstances. Criticisms of ISDS mechanisms centre on whether these processes hinder the introduction of new, or the amendment of pre-existing, regulations necessary to promote public health, environmental protections and related human rights. 1  From an examination of legal and public health literature, this article identifies three broad models for regulating the common modifiable risk factors for NCDs. 17 The first approach is largely influenced by libertarian political philosophy, with its emphasis on individual autonomy and low levels of state intervention, coupled with rational choice theory from neoclassical economics. 18 From this perspective, the consumer is a rational actor optimally placed to make decisions in their own interest. 19 Regulations in line with this approach centre on information disclosure such as education campaigns and mandated warnings on product labels. The reasoning behind this approach is that consumers, as rational actors, only require information, to make decisions that are in their self-interest. It is open to an individual to consider that the benefits of consuming a risk commodityfor example personal enjoyment outweigh the health and financial costs. In addition to the provision of information, a neoclassical approach to addressing the risk factors for NCDs may support taxes on risk commodities, provided that the taxes are equivalent to the societal benefits of declines in the consumption of risk commodities such as unhealthy food choices or tobacco. 20 The second approach to regulatory design for reducing NCD modifiable risk factors is referred to as a 'libertarian paternalist' approach. 21 Based on insights from behavioural economics and psychology, the libertarian paternalism focuses on how choices are presented to consumers, and the environmental factors that influence consumer decisions. The aim of such regulatory interventions is to gently persuade or 'nudge' individuals towards desired behaviours. 22 The libertarian paternalist approach marks a shift away from the consumer as rational decisionmaker to a new model of consumption-control policies that, in minor or significant ways, alter  policy intervention is no longer on providing a set of information to enable choice, but on changing the context of choice'. 23 The libertarian paternalist does not support outright bans on particular products. However, this approach does support subtly paternalistic consumptioncontrol measures to influence decision-making.
A third way to regulate the behavioural risk factors of NCDs is to adopt a human rights-based approach. Various human rights treaties recognise a right to a health, 24 which implies a duty on states to 'provide an environment which facilitates the discharge' of responsibilities associated with the right to health. 25 However, a rights-based approach to NCDs is less developed or evident in the literature, in international policy guidance or in regulatory interventions. For instance, NCD policy instruments developed by international institutions tend to contain broad references to human rights without constructive advice about what such an approach entails and how it could be implemented. 26 This is illustrated in the international Framework Convention on Tobacco Control, 27 which reaffirms the human right to health and the overarching duty of governments to protect public health in the foreword and preamble, but does not weave this statement into its suggested framework for tobacco control.
Despite being an emerging area, it is possible to make some preliminary observations about the form of a rights-based approach to regulating risk behaviours. To begin, a rights-based model is more holistic than the previous two regulatory strategies. A rights-based approach focuses on the root causes of the risk behaviours, that is, the underlying determinants to health, which tend to centre on inequalities within and between societies on social, economic and political levels. 28 Such an approach is compatible with NCD prevention, as NCDs tend to be more prevalent in low socio-economic groups. 29  A rights-based approach also emphasises the state's responsibility to protect citizens against human rights abuses by third parties, including corporate actors. 31 In this context, an example of a human rights abuse committed by private actors may include the promotion of risk commodities known to be detrimental to health, especially for vulnerable groups. 32 The United Nations Guiding Principles on Business and Human Rights 33 observed that states should consider 'the full range of permissible preventative and remedial measures, including policies, legislation, regulations and adjudication' in order to protect their citizens against human rights abuse by private actors. Arguably then, a rights-based approach is more likely to support comparatively more onerous consumption-control measures for risk commodities and the corporate actors that profit from them. These include, inter alia, restrictions on the availability of sugar-sweetened beverages, taxation measures, gradually implemented bans on particular products, significant or total reduction in marketing of risk commodities, especially those that target vulnerable groups such as children, and reformulation requirements. 34 To be consistent with a rights-based approach, these more onerous restrictions must be employed in conjunction with broader socio-economic interventions addressing inequities. Moreover, the right to health, and other rights protected or facilitated by consumption-control measures would need to be balanced against other human rights such as the right to liberty of the person. 35 B

Development of Consumption-control Measures
The relative successes of tobacco control have led to some tobacco control measures being translated into schemes to address other NCD risk factors, namely unhealthy diets and alcohol abuse. 36  the overarching trends in tobacco control, alcohol control and dietary-related regulations to show how the regulation of these risk commodities has evolved in both different and similar ways.
Tobacco use became widespread in the 20 th century, as advances in technologies made the mass production of cigarettes possible and as attitudes towards women smoking became more accepting. 38 In response to increasing scientific certainty about the adverse effects of tobacco use, control measures began to be adopted from approximately the 1960s to the 1980s, and centred on mandated disclosure and fiscal measures. 39 Over time, tobacco control has expanded to encompass the context in which consumers access and use tobacco. This is illustrated by the development of standardised packaging for tobacco and the increasing number of places where smoking is banned. 40 The trend towards more interventionist control measures without prohibiting a product is aligned with a 'libertarian paternalist' approach. More broadly, it reflects a willingness of states to increase and expand regulatory measures relating to tobacco control.
Against the backdrop of a strong political willingness to regulate tobacco, consumption-control measures for tobacco have been subject to comparatively more global coordination and harmonisation than other risk commodities. 41 This is evidenced by the FCTC, which, as already noted, remains the only international legal instrument for action to prevent a lifestyle factor that increases the risk of NCDs. 42 This treaty provides a national and multilateral framework for tobacco control measures with the aim of substantially reducing the prevalence of tobacco use. To achieve these ends, the FCTC obligates states to strengthen or implement a range of measures to reduce the consumption of tobacco products including, for instance, a restriction or complete ban on the marketing of tobacco products. 43 Alcohol and tobacco are behavioural risk factors for NCDs with common elements. Both are addictive drugs that have significant commercial interests, disproportionate effects on vulnerable groups and strong scientific evidence for the link between their consumption and the risk of NCDs. 44 Yet, some significant differences exist between the two, which has led to less interventionist approaches to alcohol than tobacco. Unlike tobacco, alcohol has been produced and consumed for thousands of years longer, it is embedded within religious rituals and cultures, the adverse health impacts tend to be diverse and more long-term, and moderate drinking appears to be relatively unharmful (or, according to some studies, even reduces the risk of some NCDs, although this is debated). 45 Perhaps as a result of these factors, prohibitions on alcohol from Russia, Norway, Iceland, Finland and the United States have generally been considered as unsuccessful at preventing alcohol use. 46 Moreover, tobacco has been subject to decades of scientific investigation and activism, which has built strong public consensus that tobacco use is harmful, whereas with alcohol use, there is less activism and significant research gaps remain. 47 Common measures of alcohol control include: minimum drinking ages; taxation and price control; restrictions on marketing, and on locations, quality and types of alcohol that can be consumed; and limitations on where, when and how many alcohol businesses can operate. 48 Plain-packaging of alcohol products and complete bans on marketing are rare, unlike tobacco. Casswell and Thamarangsi observed: 'Packaging and labelling restrictions have not been addressed for alcohol in the same way that they have for tobacco, but changes to labellingat least for alcohol strength and ingredientswill probably be introduced'. 49 Consequently, alcohol control has generally become more interventionist, but the measures adopted have retained a higher freedom of choice than tobacco control measures. Alcohol control measures often seem to sit somewhere between a completely libertarian approach and more paternalist interventions.
Meanwhile, regulatory interventions aimed at influencing food and dietary choices, for instance, have traditionally adopted a libertarian approach to regulatory design. 50 National dietary guidelines tend to act as the key regulatory tool for influencing diets with almost 90 states having national dietary guidelines aimed at educating consumers. 51 Social marketing campaigns are commonly used to communicate the advice contained in dietary guidelines, with the objective of influencing dietary choices by disseminating information and evidence. The requirement that nutritional information be displayed on packaged foods is another, common way to inform consumers. 52 States have increasingly considered and introduced a range of regulatory measures that seek to influence dietary choices more significantly. In part, this trend is a response to growing evidence that the libertarian approach of only providing consumers with information to make choices in their interest has been relatively ineffective. 53 The measures adopted include marketing bans on ultra-processed food, taxes on particular foods (eg soft drinks) or attributes (eg sugar content), front-of-pack nutrition labelling schemes, regulating food manufacturing and product reformulation (eg prohibition on the addition of salt to particular foods) and restrictions on the availability of particular food (eg zoning limits on the number of fast food places in particular areas). 54 In addition, some states have responded to calls for sustainable dietary interventions, that is, measures that exploit the synergies between foods that have a low environmental impact and human health and nutritional requirements. 55 Unlike tobacco and alcohol, regulatory interventions that tax or that require the reformulation of a food product have only been adopted, sometimes unsuccessfully, by a small handful of states. 56 Regardless, the larger range of regulatory interventions to influence diets that have been considered or implemented over the last decade reflect a general shift towards increased regulation to influence dietary change. The overarching trend in recent years has been towards using regulatory interventions to influence consumer choices, which is mirrored and supported by the concept of libertarian paternalism. The next section considers whether international investment law poses a threat to this (admittedly gradual and general) progress on regulating for the prevention of NCDs.

II FRICTION BETWEEN INTERNATIONAL INVESTMENT LAW AND THE ADOPTION OF CONSUMPTION-CONTROL MEASURES
A

Overview of International Investment Law
International investment law emerged from, and remains centred on, protections for foreign investors against state interference. From the post-colonial era onwards, states have increasingly developed norms to assure protections for foreign investors against arbitrary state interference. These norms have been referred to as the international minimum standard of 52 treatment for aliens. 57 Yet it was not until the later part of the 20 th century that international investment law started to develop rapidly. 58 As liberal economic policies became predominant in the 1980s, states began rapidly entering into increasingly detailed bilateral and multilateral investment agreements. 59 Indeed, the number of international investment agreements has grown from approximately 500 in 1988 to over 3000 in 2014. 60 Now, the primary sources of international investment law are the substantive rules of international investment agreements (bilateral investment treaties and investment provisions in free trade agreements) and the decisions, interpretations and applications of these substantive rules by investment treaty tribunals. These sources of international investment law, along with customary international investment law, create standards for the treatment of foreign investors as well as specific norms regarding expropriation and dispute resolution.
In relation to standards of treatment, an investor's right to fair and equitable treatment by the host state is one of the most common standards imposed via investment treaties. 61 Yet, a shared formulation of 'fair and equitable treatment' does not exist. 62 There is some suggestion from tribunals, other international institutions, and scholars that, depending on the context and the relevant provision, the following conduct can formulate a breach of the standard: clearly unequal treatment such as treatment that is significantly counter to rule of law principles; discriminatory treatment; or treatment that is grossly inconsistent with due process. 63 Regardless, the fragmented way in which international investment law develops and is implemented has led to a significant amount of ambiguity and inconsistency surrounding the interpretation of the right to fair and equitable treatment.
Specific norms relating to expropriation apply in situations where a state wishes to directly expropriate an investor's property rights. Expropriation norms were generally created to deal with situations where a state directly takes the title or possession of an investor's property. 57 Rudolf Dolzer and Christoph Schreuer, Principles of International Investment Law (Oxford University Press, 2 nd ed, 2012) ch 1. Note there is debate about the extent to which principles considered to be customary international investment law principles are in fact customary. As Professor Sornarajah observed 'General principles of law are a weak source of international law. Their weakness is accentuated by the common tendency to select a proposition from a few national systems and argue that they constitute a general principle, which should be treated as international law. Thereafter, like-minded scholars seek to achieve this conversion through constant repetition. This is a phenomenon which frequently occurs in international investment law': M Sornarajah, Since the 1960s onwards, norms regarding expropriation have generally applied to indirect forms of expropriation where a state regulates in a way that affects the investor's property to the extent that it is the equivalent of a physical taking. 64 This shift was due to a general expansion of the concept of property, and the increased precision of rights and obligations that international investment treaties provide in comparison to customary international law. 65 Regardless of whether the expropriation is direct or indirect, an expropriation must be nondiscriminatory and for a public purpose. 66 In addition, the host state must provide appropriate compensation to the investor. 67 In relation to dispute resolution norms, bilateral investment treaties ('BITs') and multilateral free trade agreements have increasingly granted foreign investors the right to directly challenge a host state's policy or other regulatory intervention. Such actions involve a foreign investor claiming in an international arbitration forum that a host state directly or indirectly expropriated their property.
These aspects of international investment law, that is, the establishment of the fair and equitable treatment obligation, the expanded understandings of expropriation and the development of ISDS clauses, are not simply a restatement of customary norms relating to investor protections. 68 Rather, they represent an evolution in international investment law in a direction that has substantially increased the scope of protections for investors. These developments have fueled significant concerns that international investment law is curtailing the regulatory space required by states to adopt, inter alia, measures to protect public health.
A host state's regulatory interventions to influence consumption choices could substantially impact on the value of an investment to the extent that enacting the regulation is considered an indirect expropriation of the foreign investor's property. Alternatively, a host state may enact particularly onerous laws targeting risk commodities, in line with a libertarian-paternalist or a rights-based approach. Strict consumption-control measures could form the basis of an ISDS challenge where the investor argues that the host state breached its obligation to provide the investor with fair and equitable treatment by enacting the consumption-control measures. Even if a regulatory intervention was legitimately for and proportionate to decreasing risk behaviours linked to NCDs, it could still form the basis of an investor claim against a host state. as the regulatory chill hypothesis, the suggestion is that ISDS mechanisms cause governments to stall, amend or abandon regulatory interventions in the public interest to avoid disputes with private actors. 70 In fact, the Special Rapporteur on the Right to Health suggested that international investment law has allowed '[t]ransnational corporations to reduce States' policy space and have been instrumental in increasing the influence of transnational corporations on States' ability to institute public health policies...'. 71 Similarly, Dr Margaret Chan, the Director-General of the WHO, described tobacco companies bringing of investment disputes in relation to tobacco control measures as 'deliberately designed to instill fear in countries wishing to introduce similarly tough tobacco control measures'. 72 Chan's comment suggests that a single case concerning tobacco control measures could have broad impacts on the development of more onerous consumption-control measures worldwide. Despite these claims, it remains notoriously hard to prove or disprove whether ISDS has affected state decision-making on whether to introduce a particular measure to prevent NCDs. 73 More broadly, ISDS raises questions about whether international investment arbitration tribunals are the appropriate forum to deal with complex matters of public interest. The applicable rules for ISDS depend on the investment agreements between the host and home states. Generally, an agreement will adopt the body of rules developed by the UN Commission on International Trade Law ('UNCITRAL') or the International Centre for the Settlement of Investment Disputes ('ICSID'). Following the consent of parties, these rules are implemented by tribunals formed under these institutions. Thus, ISDS involve tribunals of differing compositions, potentially under different bodies of rules.
The potential for these characteristics to give rise to inconsistent decisions is aggravated by the fact that settled, uniform rules on the persuasiveness of previous cases have not been created, and ISDS mechanisms lacks appeal processes to correct legal or significant factual errors. 74 Inconsistent decisions under ISDS occur in cases with similar facts but a different application of the law, across cases concerning the same investment treaty provisions. 75 The cases of CME v Czech Republic and Lauder v Czech Republic arbitrations are a classic example of this practice and the issues that arise from it. 76 The cases concerned the same Czech Republic government interference with media licences, and were both subject to UNCITRAL rules. Despite the similarities, in 2001 the Czech Republic was successful in opposing Lauder's claims of expropriation, but in 2003 was ordered to pay a substantial compensation to CME for expropriation. A legal regime where oppositional decisions exist together at the same time, coupled with a lack of appeal avenues to rectify errors, is contrary to the legal consistency, fairness and predictability required by rule of law and justice principles. 77 This raises serious questions about whether ISDS mechanisms are the appropriate forum for hearing complex matters that are of public interest as well as private matters.
Regardless of the rules that apply, international investment arbitration procedures are based on domestic commercial arbitration models that are confidential and customisable to parties' needs. As a result, disputes heard under UNCITRAL or ICSID have varying degrees of confidentiality and the granting of public access to decisions requires the consent of all parties. 78 This lack of public oversight, and specifically the limited access to award decisions, would be unacceptable in domestic courts that are complying with the rule of law.
Two other examples of procedural issues with ISDS raise doubts about the appropriateness of referring matters of public interest to ISDS. Firstly, arbitrators are appointed by the parties to the dispute, and commentators have generally considered the conflict of interest standards to be inadequate and minimal. 79 Secondly, substantial costs are often incurred in resolving investor-state disputes. The United Nations Conference on Trade and Development ('UNCTAD') found that the average legal fees and tribunal expenses in 2013 exceeded US$8 million for each party per case. 80 For host countries, the overall costs include the potential of having to pay compensation and the costs involved in carrying out the arbitration (eg legal expenses and arbitration costs). 81 Salacuse identifies a third cost, which is that 'a substantial award to the investor may require the host country to repeal or modify measures that were implemented for the public good'. 82 Non-party states may also incur opportunity costs as a result of another host state's consumption-control measures being challenged under ISDS. Where a state does not adopt a particular regulatory intervention to avoid being subject to ISDS claims, they risk incurring significantly more economic costs from NCDs (eg due to a macro-economic loss of productivity). 83 In other words, the opportunity to prevent NCDs by adopting more restrictive consumption-control measures may not be taken, which in turn may increase the incidence of and costs associated with NCDs. Due to their existing resource constraints, low and middle income countries are likely to be disproportionately affected and threatened by the financial costs of arbitration to the extent that they may wish to avoid contesting an arbitral claim and instead concede to investor demands. 84 However, it is hard (if not impossible) to predict and prove that ISDS could have such a great chilling effect that it would prevent the development of effective measures to reduce NCDs and thus increase the economic burden of NCDs for particular countries. B

Limitations of Drawing Lessons for Other Risk Commodities from ISDS Cases Concerning Tobacco
Tobacco is arguably easier to regulate than the other key risk commodities: unhealthy food products and alcohol. The consumption of ultra-processed, nutritionally-poor foods, as well as alcohol, forms part of social events, epicureanism and culture in a far more heavily entrenched way than tobacco. Because of these factors, stronger measures to influence diets or lessen alcohol abuse may have to meet a higher threshold to be considered legitimate and proportionate public health measures. The food industry, in particular, is far more diverse and multifaceted than the tobacco or alcohol industries. Brownell and Warner observed: The food industry is more complex than tobacco, with scores more players and thousands more products. Some companies, such as fruit and vegetable sellers, promote inherently good products, while some like the candy companies do the opposite. Most companies, especially the major players such as Nestlé, Unilever, and Kraft (the world's three largest food companies), do a great deal of both. 85 The difference between food as an essential human need and drugs like alcohol and tobacco, as well as the complexity of the food industry and diversity of products, suggests that consumption-control measures related to diets will be more difficult to introduce. Furthermore, the concentration within the food sector suggests that some companies are especially wellplaced to frustrate efforts to influence diets, including by referring a matter to ISDS. 86 A final point relates to 'tobacco exceptionalism', which is the notion that tobacco is uniquely toxic in nature and requires exceptional policy responses. under any applicable investment treaty. It seems narrow and inconsistent to apply this exceptionalism for tobacco, and not the two other key risk commodities. In regard to alcohol, Hawkins and Holden argued: [a]lcohol is extremely harmful causing an estimated 3.3 million deaths per year (5.9% of global mortality), versus 5.4 million deaths per year (8% of global mortality) for tobacco, and is associated with a range of wider social harms. Whilst tobacco may be uniquely harmful, the differences in harm do not appear to provide sufficient rationale for such radically different policy approaches.
Meanwhile, around 16 million disability-adjusted life years, 88 and 1.7 million deaths worldwide are attributable to diets low in fruit and vegetable consumption, 89 and an estimated minimum of 2.6 million people die each year from being overweight or obese. 90 While tobacco is exceptional in that it kills up to one half of its regular users, it is clearly not the only risk commodity significantly contributing to NCDs. Additionally, studies indicate at a population level that the use of tobacco corresponds with the uptake of unhealthy diets and alcohol abuse. 91 This suggests that a more systemic, and coherent approach to consumption-control is required, including general carveouts to preserve public policy space for consumption-control measures. 92

Australia's Tobacco Plain Packaging Laws
The dispute between Philip Morris Asia Ltd and Australia began when the federal government in Australia passed the Tobacco Plain Packaging Act 2011 (Cth). The stated objectives of the Act include to 'improve public health' by discouraging tobacco use. 93 It seeks to achieve this goal by regulating the retail packaging and appearance of tobacco products with the aim of reducing the appeal of tobacco products to consumers, increasing the effectiveness of health warnings and reducing the ability of such marketing to mislead consumers about the harmful effects of smoking. 94 The Tobacco Plain Packaging Act sets out a number of requirements for how tobacco products must be packaged, including that the boxes must have a matte finish, only employ a 'drab dark brown' colour, not have any decorative ridges or other embellishments, only provide the company name once across one line, and must not display any trade mark. 95 With this legislation, Australia seemingly removed the final avenue open to tobacco companies to advertise their products to consumers. 88 This refers to the overall productive years lost due to premature ill-health, disability or death. 89 World Health Organization, above n 5, 20.  Certainly, Australia's plain packaging laws represent more of a libertarian paternalist approach as the context in which consumers are buying and making choices about tobacco has been altered more so than, for instance, an informational campaign. 96 At the same time, the introduction of plain packaging laws is consistent with a rights-based approach; Australia is facilitating healthy environments and protecting citizens from actions of third parties that interfere with the right to health, that is, the use of marketing on packaging to promote the purchase and consumption of tobacco. Empirical evidence supports the notion that plain packaging laws contribute to the realisation of the right to health. An earlier empirical study found that those Australians smoking from plain packs perceive their cigarettes to be less satisfying; they were also more likely to have considered quitting at least once in the previous week and placed quitting as a higher priority. 97 Furthermore, the smoking cessation helpline, Quitline, has experienced a prolonged 78 per cent increase in calls following the introduction of plain packaging. 98 The Australian government defended its introduction of plain packaging laws. 103 In its response to the Notice of Arbitration in 2011, Australia stated: The plain packaging legislation forms part of a comprehensive government strategy to reduce smoking rates in Australia. This strategy is designed to address one of the leading causes of preventable death and disease in Australia…. The implementation of these measures is a legitimate exercise of the Australian Government's regulatory powers to protect the health of its citizens. 104 Australia raised several jurisdictional objections, and the following will focus on the two most relevant for the scope of this article. In the first instance, Australia asserted that the dispute arose before PM Asia had a controlling interest in the Australian company, as Australia announced its intentions to introduce plain packaging legislation before PM Asia acquired the Australian firm. 105 Alternatively, Australia argued that PM Asia's investment in the Australian firm of Philip Morris amounted to an abuse of process because PM Asia restructured its investment with the purpose of bringing a claim against Australia. 106 PM Asia defended its corporate restructuring by arguing that restructuring investments to benefit from BIT protection was a common business practice, and that, as the investor, it enjoyed a presumption of good faith. 107 In the context of ISDS, 'treaty-shopping' generally occurs where two states, country A and country B, have a BIT that has an ISDS clause. 108 An investor from a third country wants to challenge a measure brought in by country B. To do this, the investor can incorporate in country A and challenge measures under the rights and guarantees provided for by the BIT between country A and country B. Thus, PM Asia is right in suggesting that their restructuring to take advantage of the BIT between Hong Kong and Australia is common practice. Treaty-shopping tends to increase the legal uncertainties present in ISDS; it may enhance a state's perceived threat of a measure being subject to a ISDS challenge; and it allows for abuse of the investment law system if committed in bad faith. 109 Arbitral tribunals have generally held that re-structuring to benefit from an investment agreement can be legitimate or, if the context supports it, may be an abuse of process. 110 There was a long-running procedural dispute between Australia and Philip Morris that led to a large number of procedural decisions. In Procedural Order No 8, the Tribunal decided to divide

Findings and Potential Implications for Other NCD-prevention Measures
The Tribunal rejected Australia's argument that the dispute arose when Australia announced its plans to introduce plain packaging, and therefore before PM Asia restructured to take advantage of the BIT between Hong Kong and Australia. Instead, the Tribunal agreed with PM Asia that the dispute arose on the date that the plain packaging laws were passed. Since PM Asia's investment had occurred a few months before the laws were passed, no jurisdictional issues were present when the dispute arose. 111 In other words, the Tribunal focused on the timing of the particular actions that breached the BIT (the passing of the laws), and not the broader context of the dispute, which began with Australia's announcement of an intention to introduce standardised packaging laws.
Nonetheless, the Tribunal agreed with Australia that PM Asia's claim was an abuse of process.
On the basis of the evidence presented, the Tribunal was convinced PM Asia acquired the Australian subsidiary, Philip Morris (Australia) Limited, for the purpose of initiating arbitration under the Hong Kong Agreement to challenge Australia's tobacco plain packaging laws. The Tribunal agreed with previous arbitral decisions by drawing a distinction between legitimate re-structuring and re-structuring for abuse of process. This distinction is based on whether the dispute was reasonably foreseeable at the time when the investor re-structured their companies. While the Tribunal considered various tests for foreseeability used by other arbitral bodies, it interpreted a dispute as foreseeable where there is a 'reasonable prospect…that a measure which may give rise to a treaty claim will materialise '. 112 In application to the dispute at hand, the Tribunal noted that the Australian government began indicating that it would consider introducing plain packaging measures in 2008. Subsequently, in 2009 Philip Morris had sought legal advice about the plain packaging, and wrote a letter to the Health Minister protesting plain packaging laws. In 2010, various public officials, including the then Prime Minister Kevin Rudd, announced Australia's intention of introducing plain packaging legislation for tobacco products. The Australian government began consultations with stakeholders in late 2010, as Philip Morris began to re-structure its companies. Although changes in government leadership occurred in the years that followed, there was no evidence that the Australian government had changed its intention to introduce plain packaging laws. 113 On the basis of these facts, the Tribunal commented that the introduction of plain packaging laws was: [f]oreseeable well before the Claimant's decision to restructure was taken (let alone implemented On the basis of these facts, the Tribunal held that Australia's adoption of plain packaging laws for tobacco products was foreseeable to PM Asia at the time they re-structured. 115 However, if the re-structuring were justified on other grounds, then it would be less likely to be considered an abuse of process, as the re-structuring would not be solely for the benefit of triggering an ISDS clause. 116 In other words, a re-structuring will not be considered an abuse of process if it can be justified separately from the possibility of being eligible for ISDS.
PM Asia justified their re-structuring on the grounds that it was 'part of a broader, group-wide process', and submitted internal memoranda as evidence that the re-structuring of PM Australia was part of its re-structuring initiatives. 117 Specifically, PM Asia claimed the re-structure was to centralise ownership to reduce costs and to minimise tax liabilities. 118 The Australian government cast doubt on the veracity of these internal communications. It reported that any tax advantage would be negligible, and emphasised that one of the memoranda questions the commercial advantage that could be gained by re-structuring the Asian affiliates. 119 Ultimately, the Tribunal found that PM Asia was unable to establish sufficient business reasons for re-structuring, and thus 'the main and determinative, if not sole, reason for restructuring was the intention to bring a claim under the Treaty'. 120 Therefore, the Tribunal was satisfied that the arbitration constituted an abuse of process, as PM Asia re-structured when it was reasonably foreseeable that the dispute would arise, and the re-structuring was for the main, perhaps only, purpose of gaining the rights offered under the Hong Kong-Australia BIT.
Some interpreted the outcome of the case as evidence that ISDS tribunals do not allow abuses of process by investors, and that the impact of ISDS provisions on the introduction of public health measures have been over-exaggerated by opponents. 121 Others were more cautiously positive about the Tribunal's decision, and spoke of the potential for future actions against NCD prevention measures under ISDS mechanisms. 122 As Voon and Mitchell observed: 'Australia's win on jurisdiction offered a political boost to countries implementing or considering standardized tobacco packaging, but the circumstances of Philip Morris' investment in Australia may not be mirrored elsewhere.' 123 In other words, the case will make it more politically viable for other states to introduce similarly stringent public health measures, because it reduces the potential for 'regulatory chill' induced by the perceived threat of a measure being subject to ISDS. But this win for NCD prevention should be tempered because tribunals do not need to follow previous decisions, and facts differ between cases. Thus, a completely different decision could be reached in another case concerning the same or other risk commodities and similar regulatory measures. For countries wishing to introduce other measures to reduce NCD risk behaviours, this decision shows the importance of pre-empting treaty-shopping by making public announcements earlier rather than later about their intentions to introduce a particular measure to reduce NCDs. Further, it shows that governments must either be in a position to act, consistent with their announcements, or at least should internally emphasise the importance of staying consistent with their announced intention. Otherwise, it will be difficult to prove that a corporate restructuring occurred at a time when a dispute was reasonably foreseeable.
Companies producing unhealthy food or alcohol will be able to re-structure to take advantage of a treaty's protection if they can justify the re-structuring on grounds other than that it allowed them to bring a dispute under a specific BIT. Given that food, alcohol and tobacco industries adopt similar strategies to avoid the introduction of NCD prevention and control measures, 124 it seems likely that they would be better prepared to justify a re-structure following the outcome in this case. For instance, foreign investors will be more aware of the need to create valid internal communication evidence to support its justifications for re-structuring. Provided they reflect on the Tribunal's decision in this case, those industries that produce risk commodities will be in a better position to refute abuse of process or rights claims.
From the perspective of preventing NCDs, it would have been beneficial if the Tribunal in this case found that re-structuring to take advantage of a treaty's protections would be an abuse of process regardless of whether it was only one of the reasons for re-structuring. Currently though, corporate actors are in a position where they can re-structure to challenge NCD prevention measures, which may increase the potential for ISDS to have a regulatory chilling effect on measures to reduce NCD risk factors. Indeed, it may limit moves towards more stringent NCD prevention measures based on a rights-based approach. Nevertheless, tribunals do not follow precedent, and so any decision seeking to limit or prevent the ability of corporations to treaty-shop could only be persuasive (in non-legal terms) on another tribunal.

IV PHILIP MORRIS V URUGUAY
A

Challenges to Uruguay's Plain Packaging Laws
Since 1968, Uruguay has increasingly adopted measures to reduce tobacco use in order to prevent NCDs. 125 In 2009, Uruguay introduced three new measures that became the subject of the dispute with Philip Morris. The first measure required that graphic health warnings cover 80 per cent of packages. 126 The second identified the especially graphic images that would be used as health warnings. 127 The third prohibited the use of logos, colours or other such markers that would imply the tobacco product was somehow safer than or otherwise different from another. 128 The latter restriction effectively required a single presentation per brand family, as opposed to multiple variations of a brand. These measures, along with others such as restrictions on places where smoking is permitted, led to significant and unprecedented decreases in tobacco use in Uruguay. 129 Similar to Australia, these standardised packaging laws represent a 'nudging' to tobacco, as the measures have altered and restricted how brands and packaging influence consumer choice, but they do not remove the risk commodity from sale. 130 Arguably, Uruguay's more restrictive approach to tobacco marketing is also more aligned with human rights law; but, as discussed, a rights-based approach employs a more holistic understanding of health, so no one measure will ensure that a country is meeting its human rights obligations to protect against third party interferences with health and to pro-actively facilitate health.
Using the ISDS provisions under a BIT between Switzerland and Uruguay, 131 the Swiss subsidiary of the US-based Philip Morris, and other connected firms, sought either the withdrawal of the laws or damages of at least US$22.2 million with compound interest, as well as the fees and expenses incurred as a result of the arbitration. Among other breaches, the basis for their claim was that the packaging laws breached the company's right to fair and equitable treatment, 132 and Uruguay's obligation to refrain from acts of expropriation unless for public purposes and with compensation. 133  The majority first considered whether the trade mark conferred a positive right to use, or only a negative right to protect against use by another. In answering this question, the majority concluded that the legal title to the trade marks had not been affected by Uruguay's tobacco control measures as a different proprietary relationship exists between a trade mark holder and third parties from that between a trade mark holder and the state who issued the trade mark. In support of this finding, the majority observed: 'Nothing in any of the legal sources cited by the Claimants supports the conclusion that a trade mark amounts to an absolute, inalienable right to use that is somehow protected or guaranteed against any regulation that might limit or restrict its use'. 138 In a similar vein, the majority noted the unreasonable outcomes that would occur if registering a trade mark guaranteed the holder the right to sell the trade-marked product. In this way, intellectual property is more subject to the power of the state than physical property. Here, the majority drew out broader lessons for consumption-control policies by stating: Particularly in an industry like tobacco, but also more generally, there must be a reasonable expectation of regulation such that no absolute right to use the trade marks can exist. Otherwise 'the mere fact of registering a trade mark would guarantee the sale of any trade-marked product, without regard to other considerations'. If a food additive is, subsequent to the grant of a trade mark, shown to cause cancer, it must be possible for the government to legislate so as to prevent or control its sale notwithstanding the trade mark. 139 This is an important finding for measures to reduce alcohol or unhealthy food consumption that alter how the products are presented to the consumers, which tend to be more aligned with nudging and rights-based approaches to influencing the risk behaviours for NCDs. It suggests that tribunals will be less likely to require compensation for an investor where a trade mark is altered for a public health purpose.
When considering whether an expropriation had occurred, the majority considered the entirety of the business in Uruguay on the grounds that the standardised packaging laws impacted upon the business activities as a whole. Nonetheless, the majority held that the effects of the standardised packaging laws were far from being the equivalent to an expropriation, as the laws had not completely or even substantially deprived Philip Morris of the value of its investment. In fact, Philip Morris admitted that its Uruguay branch 'had grown more profitable since 2011' but added that it 'would have been even more profitable' if Uruguay had not adopted the consumption-control measures. 140 The majority concluded: [i]n respect of a claim based on indirect expropriation, as long as sufficient value remains after the Challenged Measures are implemented, there is no expropriation. As confirmed by investment treaty decisions, a partial loss of the profits that the investment would have yielded absent the measure does not confer an expropriatory character on the measure. 141 This enforces a high standard for establishing indirect expropriation, which is consistent with previous arbitral decisions. 142 A mere loss of profits in an investment will not equal indirect expropriation. Additionally, that the profits may have increased but for the measures being introduced was not given weight by the majority in this case. Such a finding also suggests that similar measures brought in for food or alcohol will be difficult to challenge unless the profits the investment would yield are substantially decreased. Thus, measures to reduce the risk factors for NCDs would have to result in the investor no longer having sufficient value in their investment after the measures are enforced. This allows for some lee-way in implementing consumption-control measures. At the same time, measures that ban a particular product, which may be aligned with a rights-based approach to regulating risk commodities, are likely to lead to a substantial decrease in the value of an investment and could be subject to indirect expropriation challenges. B

Defence Against Expropriation Claims: Police Powers Doctrine
Uruguay submitted in response to Philip Morris's claims that it could adopt measures to protect public health on the basis of the police powers doctrine, and more broadly, state sovereignty. 143 The police powers doctrine is a general and potentially customary international law principle that is closely connected, conceptually and practically, to state sovereignty. 144 Essentially, the police powers doctrine recognises that states have, on the basis of their sovereignty, an inherent legal power to regulate even where doing so will interfere with private economic interests. 145 Philip Morris viewed the defence as inapplicable because a state's regulatory power has limitations imposed by private property and, in their view, the measures were disproportionate and unreasonable 'even if enacted in pursuit of public health'. 146 It seems then that Philip Morris views libertarian approaches to public health as reasonable and proportionate, but measures which tend to be more consistent with a libertarian-paternalist approach are unreasonable. Certainty, this position is consistent with their commercial interests.
Uruguay argued that the doctrine was implied by the BIT. Specifically, article 2(1) of the BIT acknowledges that a host state can refuse an investment 'for reasons of public security and order, public health or morality'. Article 5(1), the expropriation clause, contains the commonly used restrictions on expropriation, which is that it must be 'for the public benefit, as established by law, on a non-discriminatory basis, and under due process of law...'. 147 The Arbitral Tribunal in Tecmed v Mexico first acknowledged that the police powers doctrine, 148 and subsequent cases have further developed a test to determine whether the doctrine is applicable. For instance, in LG&E Energy Corp v Argentine Republic the test was described as follows: It can generally be said that the State has the right to adopt measures having a social or general welfare purpose. In such a case, the measure must be accepted without any imposition of liability, except in cases where the State's action is obviously disproportionate to the need being addressed. 149 C

Fair and Equitable Treatment
Philip Morris argued that the plain packaging laws were unfair and inequitable. Their grounds for this argument were twofold: firstly, that the plain-packaging requirements were arbitrary as they were adopted without scientific evidence, and secondly the requirements did not adequately serve a public purpose. Secondly, Philip Morris claimed that the plain packaging laws undermined the company's legitimate expectations to use and enjoy its investments including its brand assets. Finally, Philip Morris submitted that the plain packaging laws destroyed 'the legal stability that Uruguay pledged in the BIT'. 155 Uruguay contradicted these arguments on the basis that the laws were adopted in good faith, in a non-discriminatory manner and were logically connected with Uruguay's public health objectives. In siding with Uruguay, the majority did not consider the laws to be arbitrary because there was nothing in their implementation that indicated 'a willful disregard of due process' and the plain packaging laws were adequately connected with the objective of protecting public health. 156 In reaching this decision, the Tribunal consulted a number of sources.
Firstly, the Tribunal accepted written submissions filed by the Pan American Health Organization and the WHO, which supported the importance of tobacco control measures and the international empirical evidence illustrating that particular consumers were misled by different brands of cigarettes into thinking that one cigarette was safer than another. 157 Accordingly, the submissions effectively supported Uruguay's claims regarding the legitimacy of the laws for public health purposes. Notably, the Tribunal rejected the Inter-American Association of Intellectual Property's request to file a written submission due to the 'close relationship' between Philip Morris and the association, including the participation of lawyers for Philip Morris on the association's management board and thematic committees. 158 The approach of the Tribunal in this case illustrates a willingness to allow independent non-parties to participate in complex, investment disputes relating to public health, and reveals the important contributions such bodies can make, particularly where the host state is less technically capable. Arguably, the inclusion of such briefs can help improve the legitimacy of a particular decision by an arbitral body by increasing non-party participation. Secondly, the majority's decision shows how public health objectives can profoundly inform the interpretation of an investment treaty including whether a state interference was fair and equitable. Due to the evidence regarding tobacco and NCDs, the Tribunal did not consider it relevant to debate whether a measure was reasonable, and considered it sufficient that the plain packaging laws were 'an attempt to address a real public health concern'. 159 To a certain extent, this finding may allay concerns from some commentators that 'the investor-friendly structure of investor-state dispute mechanisms can facilitate attacks on the presumption that public health regulation is necessarily for a public purpose'. 160 Finally, the Tribunal noted that Uruguay's plain packaging laws were in accordance with the FCTC, that Uruguay was an active participant in the implementation of the FCTC, and that this treaty was evidence-based, so measures consistent with FCTC provisions could also be considered evidence-based. 161 Consequently, the Tribunal did not consider it necessary for Uruguay to perform additional studies on plain packaging or to present further evidence to support its measures in order for the laws to be considered fair and equitable.
Those countries that are highly engaged at an international level in the sharing of knowledge and cooperation around measures to reduce the consumption of risk commodities may, therefore, be in a better position to implement control measures regardless of whether they have the resources to undertake the necessary scientific research. This decision illustrates the persuasiveness of a treaty based on scientific evidence, regarding control measures that reduce the consumption of particular risk behaviours. If Uruguay had not been a member of the FCTC, or had not been FCTC-compliant with its plain packaging laws, the link may not have been established between the plain packaging laws and the public health purpose. This would perhaps have led to the laws being considered as arbitrary and a breach of the fair and equitable guarantee. Given that unhealthy foods and alcohol do not have similar treaties regarding control measures, the arguments put forward by Philip Morris may be far more persuasive in cases concerning consumption-control measures for other products.
In relation to Philip Morris's legitimate expectations and the stability of Uruguay's laws, the Tribunal noted that specific undertakings by host states to investors form legitimate expectations, but a company cannot have a legitimate expectation that legislative schemes applying across a jurisdiction will remain unchanged. 162 Additionally, the Tribunal did not consider that Uruguay's legal system had been made unstable or substantially modified as a result of the introduction of plain packaging laws. Notably, the Tribunal stated: Manufacturers and distributors of harmful products such as cigarettes can have no expectation that new and more onerous regulations will not be imposed, and certainly no commitments of any kind were given by Uruguay to the Claimants or (as far as the record shows) to anyone else. 163 This is a positive statement from the perspective of regulating risk commodities to prevent NCDs. Products such as alcohol and highly processed and unhealthy food products are also considered harmful by WHO and other credible bodies on the basis of scientific evidence. Arguably then, investors cannot have a legitimate expectation that regulations in relation to these products will not become more onerous over time. This finding is consistent with the trends in consumption-control measures outlined above in Part II A Approaches to Regulatory Strategies. In particular, it allows for a libertarian-paternalist approach to consumption-control measures. Whether it allows for interventions as potentially onerous as a rights-based approach to NCD prevention is debatable.

Denial of Justice
Philip Morris claimed another breach of the fair and equitable treatment obligation based on the argument that they were denied justice. Their argument was that the two cases it brought domestically against the measures within Uruguay reached contradictory interpretations of the same statutory provision but both decisions still overturned the laws. The cases were brought to the Supreme Court of Justice of Uruguay and the Tribunal de lo Contencioso Administrativo, which are largely equal under Uruguay's constitutional system. It is unusual that one court's decision does not override another where there is contradictory reasoning.
The parties and the majority accepted that a denial of justice is found '[i]f and when the judiciary breached the standard by fundamentally unfair proceedings and outrageously wrong final and binding decisions'. 164 The majority's decision, therefore, maintains this high standard for a denial of justice, which addresses concerns that the ISDS will significantly curb sovereign powers to the disadvantage of public interests and goals. In line with this, the majority noted that ISDS tribunals 'should not act as courts of appeal to find a denial of justice, still less as bodies charged with improving the judicial architecture of the state'. 165 Ultimately, the majority was not convinced that there had been an outrageously wrong decision or fundamentally unfair proceedings, as Philip Morris were able to present their case in court, to judicial authorities acting within their jurisdiction, and received a properly reasoned decision. 166 This decision reflects a careful consideration of the role of ISDS and the variations between legal systems.

Concurring and Dissenting Opinion
Arbitrator Gary Born, who was appointed by Philip Morris, dissented from the majority in two ways. Firstly, he considered the single presentation requirements did not accord with fair and equitable treatment. 167 He emphasised that the FCTC contains a comprehensive range of detailed regulatory measures that should be adopted by signatories, but the FCTC does not oblige states or even recommend that states adopt laws that remove brand variants. 168 Because international evidence was not considered as sufficient by Born, he focused on Uruguay's domestic evidence and process for implementing the laws. Born commented 'the requirement was formulated, drafted and approved in the space of a few days'. 169 Born considered it arbitrary and disproportionate to remove brand variant trade marks because a blanket single presentation requirement is not proportionate to protecting consumers from being misled into thinking some variants of tobacco products were healthier than others. This is a compelling point, as surely other measures could have been used to prevent consumers from being misled. Thus, Born stated: '[n]otwithstanding the deference that is due sovereign regulatory measures and judgments, I am convinced that the requirement does not bear a rational relationship to its stated legislative objective, yet disproportionately injures important investor rights'. Born's judgement shows that states should ensure their objectives for a particular measure expressly include protecting public health, or otherwise draw a link between the measure and achieving public health objectives. Merely implying such a purpose will be less convincing for some arbitrators.
Secondly, Born considered that Philip Morris was denied access to justice, and therefore Uruguay had breached its obligation to provide fair and equitable treatment. Born commented that the two court decisions were 'rendered in closely-related proceedings, involving the same parties and interpreted the same provision of Uruguayan law to mean diametrically opposed 164  and contradictory things'. 170 This finding leaves consumption-control measures vulnerable to ISDS challenges where the host state's court system does not have a mechanism for the claimant to resolve conflicts between equal courts with finality. Thus, Born applied a lower standard than the majority in relation to denial of justice. In contrast, and as discussed, the majority did not find the decisions were at a level serious enough to constitute a denial of justice. An especially weighty factor in this regard was that both courts' decisions were constitutional.

V CONCLUSION
International investment law was designed to protect foreign investors from unfair interferences by host states. It remains an area of law focused on protecting the rights of foreign investors in order to promote economic growth. Due to this focus, as well as the deficiencies in ISDS processes, including a lack of transparency, there is a risk that an arbitral tribunal will award compensation to an investor, or require the state to overturn the challenged measure, in cases where a legitimate measure was adopted to reduce the consumption of risk commodities. This risk has heightened in recent decades as consumption-control measures have become more onerous in line with a more libertarian-paternalist approach.
Fortunately, the Philip Morris v Uruguay case indicates a willingness by international investment tribunals to prioritise a state's power to enact legitimate public health protections, over investors' interests. The decision further reflects how states may be able to use international evidence and the support of independent, international bodies to establish the proportionality and purpose of a particular measure to reduce alcohol or unhealthy food consumption. This is especially important for low income countries that lack the capacity to develop such evidence. Meanwhile, the Philip Morris v Australia case indicates how countries can try to prevent treaty-shopping, and, one hopes, provides an influential case for other tribunals when dealing with similar instances.
The outcomes of the ISDS cases concerning tobacco products should be understood as a positive development for other consumption-control measures, but it is a limited one. As the facts and provisions of each case differ, the risk of regulatory chill remains, as states can still be subject to ISDS for measures relating to tobacco products, and no case concerning other consumption-control measures need consider the Philip Morris cases. In addition, the risk of ISDS challenges to regulatory measures for reducing alcohol or unhealthy food consumption is arguably far greater than tobacco, due to the broader range of private actors and potentially relevant BITs involved. Likewise, the situation is likely to differ greatly where a case concerns alcohol products or unhealthy food products, which lack the support of an international treaty as a basis for consumption-control measures. There is also a far broader range of alcohol and food products with differing compositions, and low consumption of these products does not necessarily have harmful health impacts. For these reasons, it will generally be more difficult for host states to prove that regulatory measures to reduce alcohol abuse or unhealthy diets are proportionate and for legitimate public health purposes.
In the case of food, a state may be more likely to avoid liability under ISDS if it introduces consumption-control measures for particular substances with well-established negative health impacts (eg trans fats) and specific products (eg sugar-sweetened beverages), rather than applying control measures like restriction on marketing across a range of products, such as unhealthy food. In relation to alcohol, the strategy may be somewhat different because, if some alcohol products are restricted and others are not, this may suggest the consumption-control measure is discriminatory and not for legitimate public health purposes. However, a rightsbased approach to NCD prevention would arguably support more drastic regulatory interventions that would perhaps not meet the proportionality considerations that tribunals undertake when considering whether an expropriation was in the public interest or whether an investor was treated fairly and equitably. To support consumption-control measures, states should ensure they are consistent with WHO guidelines, and they may bolster claims that a measure is proportionate and legitimate by demonstrating a history of being pro-active in relation to reducing alcohol and unhealthy food consumption. The potential for ISDS to weaken, delay or prevent consumption-control measures should remain a key concern of public health advocates, and states should be considering ways of protecting their regulatory space to adopt consumption-control measures when negotiating investment treaties.