The international law of foreign investment is one of the fastest-growing areas of international economic law with several bilateral investment treaties or preferential trade agreements, including an investment chapter, negotiated every year. At the same time, new cases are being lodged at an exponential rate. Thanks to the remarkable effectiveness of its law, the investment regime has become a center of attraction not only for the settlement of disputes strictly related to investment but also problems between governments concerning matters including those of non-economic dimensions. The nature of the international arbitral process is entirely different from a national court process; it is an international tribunal governed by an international convention, mandated to inquire into the conduct and responsibility of a State in light of its treaty and customary international law obligations. This could result in significant State liability and could impact regulatory regimes and policy goals, attracting considerable criticism.

In November 2011, Australia became the first country in the world to legislate for “plain packaging” of tobacco products. As of December 1, 2012, the packaging of tobacco products sold in Australia must be a standard, drab dark brown color; and the printing of tobacco company logos, brand imagery, colors, or promotional text on that packaging and on individual tobacco products is prohibited. While the Australian scheme is described as “plain packaging,” tobacco packaging is required to be far from “plain” in the ordinary sense of the word. The scheme requires large health warnings composed of graphics, warning statements and explanatory messages, and information messages.

Plain packaging of tobacco products—which has also been called “generic packaging” or “standardized packaging”—is not a new idea. It was proposed as far back as June 1986, when the Canadian Medical Association agreed to a motion in favor of its adoption.

With tobacco trade, the past is prologue. In the 1980s, the U.S. government used domestic trade remedies (“Super 301”) to pry open markets for U.S. tobacco companies. The targets included Japan, South Korea, Taiwan, and Thailand. A grateful tobacco industry donated a renovation of the Treaty Room in the U.S. Department of State, declaring at the dedication: “Tobacco is intimately and historically associated with American diplomacy.”

Thailand responded by banning imported cigarettes on grounds that the imports were more addictive and marketing of imports was driving up consumption. The United States then challenged Thailand for violating the General Agreement on Tariffs and Trade (GATT). The GATT panel ruled against Thailand, finding that the import ban failed to satisfy the health exception of GATT Article XX.

Can private law litigation serve as a tool for advancing public health objectives? With this contentious and oft-asked question in mind, we tackle Canada's recent tobacco litigation. This Article first presents critical commentary regarding various lawsuits waged against Canadian cigarette manufacturers by citizens acting as individuals or as parties to class action lawsuits. We then turn to analyze how Canada's provincial governments rely on targeted legislation to facilitate private law recourses for recouping the healthcare costs of treating tobacco-related diseases. We address challenges to the constitutionality of this type of legislation, as well as attempts by manufacturers to transfer responsibility to the federal government.

Canadian litigation in this field is nothing like that of the United States with regards to both the volume and variety of its individual and class action litigation claims. This is also true with regard to the stage of advancement of governmental claims in Canada. Nevertheless, particularities of the Canadian context may provide interesting contrast with the situation in the United States.

Despite the overall theme of this Issue being the future of global tobacco control, this Article is about Japan, with the conscious intention of presenting Japan as a demonstration of a different type of tobacco control environment. To be clear, I am not trying to suggest Japan is an unambiguously positive exemplar for other nations. Rather, it is with the idea that Japan's circumstances might be showing us that things are not always as bad as they might first appear. To quote Mick Jagger and Keith Richards, great philosophers of the twentieth century, “You can't always get what you want, but if you try sometimes, you just might find, you get what you need.”