The TPP ISDS tobacco carveout was the first, the Singapore - Australia FTA update was the second. Now we have a third example, carried by Singapore over to the Singapore - Kazakhstan BIT:
CHAPTER III: DISPUTE SETTLEMENT
SECTION ONE: SETTLEMENT OF DISPUTES BETWEEN A PARTY AND AN INVESTOR OF THE STATE OF THE OTHER PARTY
ARTICLE 11
PURPOSE...
2. This Section shall not apply to any dispute concerning any measure adopted or maintained or any treatment accorded to investors or investments by a Party in respect of tobacco or tobacco-related products.
3. For the purposes of this Agreement, “tobacco or tobacco-related products” means products under Chapter 24 (Tobacco and Manufactured Tobacco Substitutes) and tobacco-related products falling outside Chapter 24 (Tobacco and Manufactured Tobacco Substitutes) of the Harmonised Commodity Description and Coding System of the World Customs Organisation.
...
ARTICLE 13
SCOPE...
2. This Section shall not apply to any dispute concerning any measure adopted or maintained or any treatment accorded to investors or investments by a Party in respect of tobacco or tobacco-related products.
The TPP and Singapore - Australia FTA carveouts only applied to "tobacco control measures." This Singapore - Kazakhstan provision seems broader: Any measure in respect of tobacco or tobacco-related products. Thus, if one of the governments decided to discriminate in favor of a locally owned tobacco company, a foreign investor could not bring a claim.
(Thanks to IAReporter for the tip.)
