INTERNATIONAL TRADE DISPUTE SETTLEMENT BETWEEN AUSTRALIA AND INDONESIA UNDER WORLD TRADE ORGANIZATION DISPUTE SETTLEMENT BODY (WTO DSB) MECHANISM: AUSTRALIA‟S PLAIN PACKAGING ACT 2011 (2013 - 2017)

Abstract

Tobacco is one of the leading preventable causes of death in many countries around the globe. It is recorded that 7 million people are killed annually by the consumption of tobacco through the study conducted by World Health Organization (WHO). Responding to this issue, WHO through the Framework Convention on Tobacco Control (FCTC), has taken numerous steps to reduce the number of death caused by tobacco consumption, one of which is the introduction the concept of plain packaging for tobacco products. The plain packaging policy has been adopted by Australia through the Tobacco Plain Packaging Act 2011. Coming into force on first of December 2012, this Act is believed by Australian Government to be the most effective way in reducing the consumption on Tobacco product. However another problem arouse as Indonesia and two other tobacco producer countries are protesting Australia for the implementation of the Plain Packaging as it is believed to be violating the Intellectual Property Rights Law as well as Technical Barriers to Trade Law. The case was then brought to the World Trade Organization court for seeking the dispute settlement. This study analyzes the crosscutting issues between Australian Government’s action to protect the citizens from the harm of tobacco products and Indonesia’s objection on the action on behalf of Intellectual Property Rights protection. This study will also provide the analysis on how the Plain Packaging Act enforced by the Australian Government has violated the IPR protection based on the provision in the Trade Related Intellectual Property Agreement and WTO basic principles as well as analyzing the role of WTO in the dispute. At the end of the study, the writer would like to conclude that the Plain Packaging Act 2011, imposed by Australian Government has vividly violated several articles of TRIPS Agreement and as the institution that hold the responsibility to oversee the case, the WTO DSB has provided the consultation for both disputing parties which did not reach a mutual solution which then lead to panel establishment in the DSB. Up until 2017, the case is still in the panel stage to hear the decision and report from panel which then be used by WTO DSB in making its final saying.