담배의 단순포장(plain packaging) 조치와 TRIPS 협정 간의 합치 문제- Australia – Plain Packaging 사건에 대한 평석 -

The WHO’s Framework Convention on Tobacco Control (FCTC), established on May 21, 2003, obliges its Member States to prevent increasing the attractiveness of tobacco products by strategic packaging and labeling by the tobacco companies (Article 11 of the Convention). Based on this rule, the so-called Tobacco Plain Packaging Guidelines, dealt with in the frame of the Conference of the Parties (COP) to the FCTC held in 2008, were decided by the consensus among the Member States. After the Guideline was adopted, several Member States have begun to implement it and been introducing the plain packaging regulations in their tobacco control programs, with Australia at the forefront. Against this backdrop, tobacco companies and tobacco producing countries have initiated to raise various claims at an international level beyond the domestic and transnational lawsuits. The dispute settlement procedure before the WTO Panel, which is addressed as a main topic in this article, is also one of their attempts to challenge the new regulations. The dispute settlement in question, brought by Indonesia, the Dominican Republic, Cuba and Honduras as complaints, took more than five years to conclude. Although Australia won the case at the first stage, thus a similar regulation will likely be adopted in more countries, the case should be analyzed and evaluated especially with regards to its meaning for the future disputes. This paper analyzes, article by article, the TRIPS Agreement as well as the Paris Convention, which is according to Art. 2.1 TRIPS incorporated as an integral part of the Agreement, raised as issues in the dispute. First of all, it examines the object and content of the individual provisions, with which the Australian regulations in question were confronted, and then it reviews the argumentation contended by the parties towards issues and the findings of the Panel described in the Report. Then, it adds the Author’s own assessment along with the Panel’s path of analysis. Especially, Art. 20 TRIPS leaves the opportunity the room for justifying the restriction on the use of trademarks by the government, which this article examines more extensively focusing on the logical steps towards the justification presented by the Panel and evaluates its significance. The Panel Report overall may be considered as in the same line as dictionary oriented approaches which the previous GATT/WTO reports have tended to maintain, also when interpreting the TRIPS, but it is a step forward in its pursuit of a balance between countervailing values and objectives including somewhat external ones. At the end of the article is addressed the overall significance of the Report and its implications for the future.