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Big tobacco’s legal threats highlight danger of EU-US trade talks

Press Release

Tuesday 17 Feb 2015

‘The threat of court action against Ireland from the owners of Benson and Hedges and Silk Cut cigarette brands shows how dangerous it is to give multinational corporations legal fora to challenge governments over public policy decisions’, according to Nessa Childers, MEP for Dublin.

Ms. Childers, who has a record of challenging big tobacco as a member of the Public Health Committee in the European Parliament, reacted strongly against JTI Ireland’s legal threat of a High Court case for damages if the Irish government fails to kill the plain tobacco packaging bill.

Ms. Childers said:

“This goes to show the obvious. Multinational corporations will hold any available legal guns to the taxpayer’s head to stop public policy-making in its tracks, whenever it risks harming their profits.

“This is why I have been fighting the inclusion of a clause enabling investors to claim damages, for lost profits, against Member States, behind closed doors, in private, out-of court settlement schemes in the EU-US Trade and Investment Partnership currently under negotiation.

“They are already doing it against Australia, through some legal acrobatics involving a similar clause in a trade deal with Hong Kong.

“If they move ahead with this legal case, at least the state will be fighting them on behalf of the Irish citizens in a proper court of law.

“If the trade agreement is passed with such a clause, the legal battleground can well move to a private arbitration forum, an opaque netherworld where the best paid legal suits stand an even better chance of ripping off the taxpayer as punishment for public interest policy that costs big business money.

“I have recently asked the European Commission, through a number of Parliamentary Questions, to clarify a number of points that relate to these spurious claims that plain packaging is an appropriation of copyrights and how the protection of public health can be protected in the context of international trade deals.

“These legal threats have only made a clear answer all the more urgent.

“Big tobacco makes much of how many they employ and the taxes they pay. Now, not only do they keep their eyes closed their products’ toll on individuals and society as a whole, they want to pick our pockets for taking pretty modest measures to protect our health against them”



You can see below Nessa Childers’ Parliamentary Questions to the Commission on this matter, tabled last month:

TTIP, investor protection and intellectual property

Does the Commission consider the inclusion of intellectual property in the definition of investment, for the purposes of investor protection provisions in the text of the Transatlantic Trade and Investment Partnership, as a negotiable matter in its trade talks with the United States authorities?

International trade, Intellectual Property and Public Health

Is the Commission of the view that non-discriminatory action on the part of Member State governments in the overriding interests of public health, which entails marketing restrictions without encompassing the acquisition of intellectual property, can be protected from claims of breaches of intellectual property rights in the texts of international treaties it has a current mandate to negotiate?

Intellectual property and plain packaging

Does the Commission consider non-discriminatory plain packaging legislation, such as that applicable to cigarette packages, a form of acquisition of intellectual property, or that any claims to intellectual property rights may arise as a consequence of such legislation, under present trade agreements or agreements it has a current mandate to negotiate?

ECJ and investor protection

Does the Commission consider that, for the matters under its jurisdiction, the Court of Justice of the European Union provides an adequate forum of recourse for private investors that operate in the EU markets?

Could the Commission specifically indicate the instances where an international arbitration system is necessary so as to provide better transparency and legal security for investors in the EU jurisdictions?

EU law and investor protection

Does the Commission consider that the acquis communautaire equips the EU jurisdictions with a optimal legal system which robustly protects private investors that operate in the EU markets?

Could the Commission specifically indicate the instances where an international arbitration system is necessary so as to provide enhanced or specific legal protection for investors in the EU jurisdictions, as opposed to a mere application of the acquis communautaire?

ISDS legal fee statistics

Is the Commission in possession of comprehensive statistical data pertaining to the outcome of investor-state arbitration outcomes, as regards the ratio of decisions where the payment of legal fees was assigned to the investor party versus the state party, as well as to how this compares to the substantive outcome of the decisions for either type of party?