The Notification of Claim in the Philip Morris/Plain Packaging BIT claim is available from Australia DFAT here: http://www.dfat.gov.au/foi/downloads/dfat-foi-11-20550.pdf
Here's an excerpt:
(b) Specific contraventions of the Hong Kong-Australia BIT
44. The effect of plain packaging leglslalion, and for the same reasons the GHW regulation, is plainly equivalent to deprivation of title to the intellectual property and goodwill. Moreover, the effect of plain packaging legislation will be substantially to deprive PM Asia of the commercial value of its investments In Australia. In all these senses, plain packaging legislation breaches Article 6 of the Hong Kong-Australia BIT. Article 6 protects investments from measures by a host State that have an effect equivalent to deprivation, except under due process of law, for a public purpose related to the internal needs of the host State, on a non·discriminatory basis and against compensation. While it is not yet clear if the Government will follow due process in passing plain packaging legislation, it is clear that there Is no credible evidence that plain packaging legislation will have the claimed effect of enhanced public health (indeed there is evidence to suggest that it may have the opposite effect and no compensation has been paid). The effective extinguishment of the intellectual property by way of legislation also manifests a failure by Australia to afford full protection and security to PM Asia's investments as required by Article 2(2) of the Hong Kong·Australia BIT.
45. Neither is plain packaging legislation (and for the same reasons the GHW regulation) fair and equitable, as required by Article 2(2) of the Hong Kong-Australia BIT. Plain packaging legislation will severely curtail the commercial utility of the intellectual property and goodwill and has a severe negative impact on the value of PM Asia's investments in Australia. It contravenes Australia's international obligations under TRIPS, the Paris Convention, and the TBT. There is no credible evidence that it will reduce smoking prevalence, while other measures that do affect prevalence and do not severely curtail the intellectual property or goodwill are available to the Government. Its contributioon to public health is purely speculative and there is, in fact, evidence, that it will have a negative effect in this regard. Its promotion and imminent enactment appear to be motivated by political concerns rather than a genuine desire for fair and equltable regulation. In short, the benefits of the legislation (if any) are entirely disproportionate to the harm it will cause to PM Asia's investments; accordingly, the legislation is not fair and equitable in any sense.
46. For the same reasons, plain packaging legislation and the GHW regulation each constitute an unreasonable impairment to the management, maintenance, use, enjoyment or disposal of PM Asia's investments in Australia in breach of Article 2(2) of the BIT. Finally, and also pursuant to Article 2(2) of the BlT, contravention of Australia's international trade treaty obligations results in a failure by Australia to observe obligations entered into with regard to investments of investors in its territory.
Thanks to Amy Porges for the tip.
