
Contents
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Introduction Introduction
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I. Legal Fragmentation vs. Interpretative ‘Systemic Integration’ I. Legal Fragmentation vs. Interpretative ‘Systemic Integration’
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II. Legitimacy Problems of WTO Adjudication II. Legitimacy Problems of WTO Adjudication
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A. Respect for the Separation Between Democratic, Executive and Judicial Powers? A. Respect for the Separation Between Democratic, Executive and Judicial Powers?
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B. Standards for Assessing the Legitimacy of Courts B. Standards for Assessing the Legitimacy of Courts
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C. Legal ‘Inside Legitimacy’ of WTO Dispute Settlement Reports C. Legal ‘Inside Legitimacy’ of WTO Dispute Settlement Reports
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D. Challenges to the ‘Outside Legitimacy’ of WTO Adjudication D. Challenges to the ‘Outside Legitimacy’ of WTO Adjudication
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III. Consistency of Australia’s Tobacco Plain Packaging Laws and Policies with the WTO Agreement on Technical Barriers to Trade III. Consistency of Australia’s Tobacco Plain Packaging Laws and Policies with the WTO Agreement on Technical Barriers to Trade
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A. The Panel Findings in a Nutshell A. The Panel Findings in a Nutshell
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B. Approach and Key-Findings of the WTO Panel Regarding Article 2.2 TBT Agreement B. Approach and Key-Findings of the WTO Panel Regarding Article 2.2 TBT Agreement
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IV. Consistency of Australia’s Tobacco Plain Packaging Laws and Policies with the WTO Agreement on Trade-Related Intellectual Property Rights IV. Consistency of Australia’s Tobacco Plain Packaging Laws and Policies with the WTO Agreement on Trade-Related Intellectual Property Rights
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A. Article 6quinquies of the Paris Convention—Protection of Trademarks ‘As Is’? A. Article 6quinquies of the Paris Convention—Protection of Trademarks ‘As Is’?
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B. Article 15.4 TRIPS Agreement—Nature of Goods as Obstacle to Registration of Trademarks? B. Article 15.4 TRIPS Agreement—Nature of Goods as Obstacle to Registration of Trademarks?
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C. Article 16.1 of the TRIPS Agreement—Rights to Prevent Unauthorized Use C. Article 16.1 of the TRIPS Agreement—Rights to Prevent Unauthorized Use
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D. Article 16.3 of the TRIPS Agreement—Well-Known Trademark Status D. Article 16.3 of the TRIPS Agreement—Well-Known Trademark Status
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E. Article 20 TRIPS Agreement—Unjustifiable Encumbrance on the Use of a Trademark? E. Article 20 TRIPS Agreement—Unjustifiable Encumbrance on the Use of a Trademark?
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F. Article 10bis of the Paris Convention—Protection against Unfair Competition F. Article 10bis of the Paris Convention—Protection against Unfair Competition
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G. TRIPS Agreement Articles 22.2(b) and 24.3—Protection of Geographical Indications G. TRIPS Agreement Articles 22.2(b) and 24.3—Protection of Geographical Indications
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V. Conclusion: ‘Constitutional Functions’ of WTO Adjudication and Us Power Politics V. Conclusion: ‘Constitutional Functions’ of WTO Adjudication and Us Power Politics
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A. Evaluating the Australia-TPP Panel Report from a ‘Constitutional Justice’ Perspective A. Evaluating the Australia-TPP Panel Report from a ‘Constitutional Justice’ Perspective
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B. Will US Power Politics Destroy the WTO Legal and AB System? B. Will US Power Politics Destroy the WTO Legal and AB System?
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How to Reconcile Human Rights, Trade Law, Intellectual Property, Investment and Health Law? WTO Dispute Settlement Panel Upholds Australia’s Plain Packaging Regulations of Tobacco Products
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Published:August 2019
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Abstract
This article on the legal findings of the four WTO panel reports of June 2018 on Australia’s tobacco plain packaging (TPP) measures begins with a discussion of the ‘systemic interpretation’ challenges (section I) and ‘legitimacy challenges’ of WTO panel interpretations of trade rules that affect also related disputes over intellectual property rights, health rights, investment regulations and human rights (section II). Section III summarizes the main Panel findings that the TPP measures are apt to, and do make a meaningful contribution to Australia’s objective of reducing the use of, and exposure to, tobacco products; the claimants have not demonstrated that the TPP measures are ‘more trade-restrictive than necessary to fulfil a legitimate objective’ in violation of Article 2.2 of the WTO Agreement on Technical Barriers to Trade (TBT). Section IV summarizes the Panel findings that the complainants did not demonstrate that the TPP measures were inconsistent with the WTO Agreement on Trade-Related Intellectual Property Rights (TRIPS). Section V concludes.
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