Melbourne Law School - Research Publications

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    The Trans-Pacific Partnership as a Development of the Australia–United States Free Trade Agreement: Services Liberalisation and Investment Protection
    Voon, T ; Mitchell, AD ; Huerta-Goldman, JA ; Gantz, DA (Cambridge University Press, 2021-11-11)
    This chapter compares the Trans-Pacific Partnership Agreement (TPP) with the Australia -- United States Free Trade Agreement (AUSFTA), reflecting on relevant developments in the Australia -- United States relationship, including with respect to agriculture and biologic medicines. The chapter focuses on the Chapters on services and investment, addressing areas such as electronic commerce, investor--state dispute settlement (ISDS), and the "carve-out" of tobacco control measures from ISDS in the TPP. The comparison of investment in the two treaties is particularly of interest given the exclusion of ISDS in the AUSFTA and its inclusion (except as between Australia and New Zealand) in the TPP. We conclude that the TPP is a more modern agreement than the AUSFTA with several improvements that provide greater regulatory policy space. However, the inclusion of ISDS as between Australia and the United States in the TPP is questionable.
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    Trade law and alcohol regulation: what role for a global Alcohol Marketing Code?
    Mitchell, AD ; Casben, J (WILEY, 2017-01)
    BACKGROUND AND AIMS: Following calls for restrictions and bans on alcohol advertising, and in light of the tobacco industry's challenge to Australia's tobacco plain packaging measure, a tobacco control measure finding support in the World Health Organization (WHO) Framework Convention on Tobacco Control, this paper considers what role, if any, an international alcohol marketing code might have in preventing or reducing the risk of challenges to domestic alcohol marketing restrictions under trade rules. METHODS: Narrative review of international trade and health instruments and international trade court judgements regarding alcohol products and marketing restrictions. FINDINGS: The experience of European trade courts in the litigation of similar measures suggests that World Trade Organization rules have sufficient flexibility to support the implementation of alcohol marketing restrictions. However, the experience also highlights the possibility that public health measures have disproportionate and unjustifiable trade effects and that the ability of a public health measure to withstand a challenge under trade rules will turn on its particular design and implementation. CONCLUSION: Measures implemented pursuant to international public health instruments are not immune to trade law challenges. Close collaboration between health policymakers, trade officials and lawyers, from as early as the research stage in the development of a measure to ensure a robust evidence base, will ensure the best chance of regulatory survival for an international marketing code.
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    No Retreat: An Emerging Principle of Non-Regression from Environmental Protections in International Investment Law
    Mitchell, A ; Munro, J (Georgetown University Law Center, 2019)
    A principle that host states not regress from existing environmental protections in their domestic legal systems to promote foreign investment has quietly begun to establish itself in international investment law in the last decade. With origins in the North American Free Trade Agreement, more than 130 countries now subscribe to this idea in at least one of their international investment agreements. The simplicity of the concept of non-regression and the evident legitimacy of environmental objectives mask deep complexities in measuring levels of environmental protection and identifying reductions in those levels. These complexities are exacerbated by the wide variety of drafting of non- regression clauses, with significant implications for their operation and potential enforcement through investment treaty disputes. Despite the increasing popularity of non-regression clauses as evidenced by an extensive survey of existing treaties, states’ current approaches to these clauses leave major questions unresolved, creating the potential for unintentionally increasing host state liability without necessarily enhancing environmental or economic goals.
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    On the Bottle: Health Information, Alcohol Labelling and the WTO Technical Barriers to Trade Agreement
    O'Brien, P ; Mitchell, A (Queensland University of Technology, Faculty of Law, 2018)
    Since 2010, the World Health Organization has advocated the use of health information labelling to inform consumers of the health risks related to alcohol consumption. The alcohol industry oscillates between opposing and supporting alcohol labelling. This article reviews the minutes of the meetings of the World Trade Organization’s (‘WTO’s’) Committee on Technical Barriers to Trade (‘TBT’) (from 2010 to the present day) to garner unique insights into the specific features of alcohol health information labelling that are opposed by the alcohol industry. The article also identifies and analyses the trade law arguments that are made against these contested labelling measures. These arguments primarily come from the WTO’s TBT Agreement. Our view is that the TBT Agreement will provide little comfort to alcohol exporting members who seek to rely on it to challenge alcohol health labelling measures, such as those discussed in the TBT Committee.
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    Australia and International Trade Law
    Mitchell, AD ; Sheargold, E ; VOON, T ; Rothwell, DR ; Crawford, E (Thomson Lawbook Co, 2017)
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    JUSTICE AT THE SHARP END - IMPROVING AUSTRALIA'S MILITARY JUSTICE SYSTEM
    Mitchell, AD ; Voon, T (UNIV NEW SOUTH WALES, FAC LAW, 2005)
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    OPEN FOR BUSINESS? CHINA'S TELECOMMUNICATIONS SERVICE MARKET AND THE WTO
    Voon, T ; Mitchell, A (OXFORD UNIV PRESS, 2010-06)