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    Tobacco companies are rogue corporations who have been knowingly marketing addictive poison to minors for decades. They are using legal loopholes to exploit a trade agreement in ways that were not intended. We should let Hong Kong know of our intention to withdraw from the relevant parts of the agreement and start renegotiating. In the meantime we should retrospectively legislate to nullify that part of the agreement. We owe Big Tobacco nothing.

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    Kyle Dickson-Smith

    As an international (and NAFTA) lawyer, there are some issues with these statements that I feel compelled to point out. The facts, features and practice of the investor-state dispute mechanism should be identified and clarified- without undue fear-mongering.

    “Quite simply, the rules of international investment tribunals suit international investors, because they lack the transparency and independence of national court systems.”

    International tribunals frequently allow submissions by amicus curiae (namely, from third parties, such as NGOs) throughout the proceedings. These opportunities are usually offered at an advanced stage of the proceedings, once the parties’ evidence and submissions have been exchanged. Investor-state tribunals frequently publish both their procedural and substantive decisions to the public.

    “The tribunals lack judicial independence, since advocates can also be arbitrators, and arbitrators are paid by the hour.”

    There are safeguard mechanisms in place within the arbitral process to ensure that the parties appoint an independent arbitrator. It is customary for an arbitrator, upon his or her appointment, to file a declaration of independence, stating whether any conflicts of interest exist. Further, an arbitrator can be challenged throughout the arbitral process for any lack of independence.

    “There is no system of precedents, and no appeals, so decisions lack consistency.”

    While it is correct to state that tribunals are not bound to follow previous decisions, the position and approach taken by most arbitrators is to rely on those decisions as a form a body of jurisprudence (often referred to as the civil law doctrine of jurisprudence constante). Indeed, not being strictly shackled by restrictive legal precedent is an advantage of the investor-state mechanism, which allow arbitrators to take each case on the merits and make a fair and equitable decision.

    “the US-Australia free trade agreement does not have investor state dispute settlement, which was hotly debated during the negotiations in 2004, and even the Howard government did not agree to it.”

    There were various factors in play when it was decided that the US-Australia Free Trade Agreement would not include an investor-state dispute resolution process. Like any commercial agreement between two parties, it was a compromise between the parties that resulted in the FTA’s current form. In this case, Australia’s demand for sugar access over and above the existing US tariff-rate quotas led to a tradeoff in the US not adopting investor-state dispute settlement. It is predicted that a similar tradeoff may arise between the parties throughout the negotiation of the TPP (Trans-Pacific Partnership) (Inside US Trade, March 2012).

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    James Graham

    you what to really put the kibosh on Phillip Morris? QUIT SMOKING and don’t be a whoos about it…cold turkey. And let the smokers in your life know they stink and you don’t want them around you till they ‘clean up’


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