The TPP text is now available here, among other places. My understanding is that this is not the "legally scrubbed" text, but it should be virtually identical to the final version.
Analyzing the TPP should keep us all busy for the next year or so. I'll start with one of my favorite subjects, the tobacco carveout, which is in Chapter 29 (Exceptions and General Provisions):
Article 29.5: Tobacco Control Measures12
A Party may elect to deny the benefits of Section B of Chapter 9 (Investment) with respect to claims challenging a tobacco control measure13 of the Party. Such a claim shall not be submitted to arbitration under Section B of Chapter 9 (Investment) if a Party has made such an election. If a Party has not elected to deny benefits with respect to such claims by the time of the submission of such a claim to arbitration under Section B of Chapter 9 (Investment), a Party may elect to deny benefits during the proceedings. For greater certainty, if a Party elects to deny benefits with respect to such claims, any such claim shall be dismissed.
12 For greater certainty, this Article does not prejudice: (i) the operation of Article 9.14 (Denial of Benefits); or (ii) a Party’s rights under Chapter 28 (Dispute Settlement) in relation to a tobacco control measure.
13 A tobacco control measure means a measure of a Party related to the production or consumption of manufactured tobacco products (including products made or derived from tobacco), their distribution, labeling, packaging, advertising, marketing, promotion, sale, purchase, or use, as well as enforcement measures, such as inspection, recordkeeping, and reporting requirements. For greater certainty, a measure with respect to tobacco leaf that is not in the possession of a manufacturer of tobacco products or that is not part of a manufactured tobacco product is not a tobacco control measure.
(The investment chapter is here. Section B is ISDS.)
Here's my first question: Is this provision self-judging? In other words, who decides whether a measure is a "tobacco control measure"?
The language about a party "electing" to deny benefits suggests maybe it is self-judging. The whole provision depends on what governments "elect" to do.
On the other hand, you need some oversight of these things, or a government might claim that any ordinary regulation is a tobacco control measure because of some distant relationship it has to tobacco control. A party can "elect" to use the exception, but only, of course, if the measure is a tobacco control measure. So perhaps the investment tribunal would need to decide this question?
Here's another question: Are e-cigarettes, which use nicotine that has been extracted from tobacco, covered here? Are e-cigarettes a product "made or derived from tobacco"?
Next up, let's say a government wants to eliminate production of tobacco, and to do so, it expropriates a foreign tobacco company's factory. Would that fall under this exception?
Another point worth noting is that this exception is only from ISDS. Presumably the normal state-state dispute settlement rules would apply to these measures.
It would be a lot of fun if some day there is a case that explores some of these issues. So far there have only been two ISDS challenges of this kind of measure, so it seems unlikely any such cases are coming, but you never know.
