The Design and Selection of International Dispute Settlement Mechanisms: A Case Study of Australia’s Tobacco Plain Packaging Act

• Main Authors: Lu, Si-Wei, 盧思薇
• Other Authors: Lin, Ching-Fu
• Format: Others
• Language: zh-TW
• Published: 2017
• Online Access: http://ndltd.ncl.edu.tw/handle/g9n2s5

碩士 === 國立清華大學 === 科技法律研究所 === 105 === The case of Australia’s Tobacco Plain Packaging Act (TPPA) concerns a number of legal issues as to TPPA’s compatibility with the World Health Organization (WHO) Agreement on Framework Convention on Tobacco Control (FCTC), the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), and Agreement between the Government of Australia and the Government of Hong Kong for the Promotion and Protection of Investments. This case is of extraordinary importance under the international legal framework with respect to problems resulted from the proliferation of international dispute settlement mechanisms. Similarly, it sheds light on issues regarding the selection and design of international courts. The existing literature primarily focuses on forum shopping before domestic courts, leaving out an equally important, yet less explored issue—forming shopping before international dispute mechanisms. In this Article, the author therefore presents a design and selection theory of international dispute settlement mechanisms. Moreover, the author seeks to apply this theory to the case of Australia’s Tobacco Plain Packaging Act, discussing the costs and benefits of using international trade, international investment, international health, and domestic court’s dispute settlement mechanisms, and specifically analyzing each regime’s design flaws. With a focus on the relationship between the increased international tribunals and transnational disputes with legal tricky issues, this article proposes “a rational design and selection of dispute settlement mechanisms” approach as a possible solution for the unsettled issues under the international framework.