Respecting regulatory measures: Arbitral method and reasoning in the Philip Morris v Uruguay tobacco plain packaging case

The decision in the Philip Morris v Uruguay tobacco plain packaging case is important not only for its contribution in the health field but also more broadly for international environmental lawyers in light of the methodologies employed by the majority. The Philip Morris v Uruguay tribunal's willingness to place weight on international health law, embodying an openness to international law from beyond the investment field, was crucial to the decision. Additionally, the tribunal demonstrated a vital preparedness to engage with the scientific or technical question of whether Uruguay's tobacco measures would actually potentially be effective in reducing smoking, while accepting the inherent limitations in the available science. Notions of deference and margin of appreciation, as well as disproportionality or proportionality testing, may have eased the way for the majority decision, but were less crucial and ought not to be over‐emphasized. Indeed, where there is broad international legal support for host States’ policies, it weakens international public policy to rest respect for States’ policies simply on a broad notion of deference or ‘margin of appreciation’. The Philip Morris v Uruguay tribunal was right to turn instead to international health law and the technical evidence on countering tobacco‐related disease.