Japan Law Geek

Regular readers of this blog are no doubt aware that I have a dim view of smoking. So it is with great joy that I can report that the Australian High Court have just dealt Big Tobacco a huge blow by confirming the legality of the Australian government’s initiative to require cigarette companies to use plain packaging for their products.

As I mentioned in my earlier post about smoking in Japan, JT International initiated a legal challenge against the Commonwealth of Australia on 14 December 2011 “[i]n order to protect its ability to use its brands and key trade marks on the packaging of tobacco products sold in Australia”. According to the Sydney Morning Herald article:

“During the hearings in April the companies – British American Tobacco, Philip Morris, Imperial Tobacco, Van Nelle Tabak Nederland and JT International SA – argued the measure breached the constitutional requirement that the acquisition of property by the government be on just terms.

But to make that case, the companies had to show that the government gained a measurable benefit as a consequence, which is apart from the claimed benefits to population health.”

It would seem that they were unsuccessful in making that point. The text of the decision of the High Court has yet to be released, but it will likely be influential on other jurisdictions (namely the UK) hoping to implement the same packaging requirements.

UPDATE

It would seem that the webpage on the JT domain re: the Australian challenge has been taken down

On the plus side, they’ve replace it with a webpage now attacking the UK initiative. Curiously, the webpage says:

“The campaign, a first for JTI, questions the consultation process and targets both government and decision makers.” 

Not sure why this is a “first” for JTI… they obviously don’t think anyone notices… I do

UPDATE #2

The Nikkei has a report noting that the story will likely not end with the Australian High Court. The article suggests that Philip Morris will take the matter to a “United Nations tribunal” claiming that “the law breaches a 1993 trade deal between Australia and Hong Kong that safeguards each country’s respective offshore investments”.

The details of this action can be gleaned from its press statement of last year, where it outlines its argument as follows:

The Australia – Hong Kong Bilateral Investment Treaty (BIT)
The Treaty was entered into by the Governments of Hong Kong and Australia in 1993 and seeks to create favorable conditions for greater investment and promote economic cooperation, by providing reciprocal protection for investments made in one country by investors from the other.

Australia is in breach of the BIT because plain packaging:
• Amounts to unlawful expropriation of PMA’s investments and valuable intellectual property without compensation (Article 6(1))
• Fails to provide fair and equitable treatment to PMA’s investments in Australia (Article 2(2))
• Unreasonably impairs PMA’s investments in Australia (Article 2(2))
• Fails to provide full protection and security for PMA’s investments in Australia (Article 2(2))
• Breaches Australia’s international obligations in relation to PMA’s investments (Article 2(2)) by violating The Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS), the Paris Convention for the Protection of Industrial Property and the WTO Agreement on Technical Barriers to Trade (TBT)

Steps to date
On June 27, PMA first notified the Government that it would take legal action under Australia’s Bilateral Investment Treaty with Hong Kong if Australia proceeded to pass plain packaging legislation. In accordance with the terms of the BIT, the notice triggered a three month mandatory negotiation period between PMA and the Australian Government. With the passage of the legislation, it is clear that PMA was unable to resolve the dispute with the Government during this time. The notice served on the Australian Government today begins the formal legal proceedings under the Arbitration Rules of the United Nations Commission on International Trade Law 2010. PMA is proposing Singapore as the seat of arbitration and that the appointing authority be the Secretary-General of the Permanent Court of Arbitration at The Hague.

WATCH THIS SPACE!

It’s a small development, but a welcome one.

According to the Japan Times, Hyogo Prefecture (you know – the one of which Kobe is the capital) has passed a total ban of smoking in school and hospitals as of 1 April, 2013.

I know what you’re thinking – April Fool’s, right? No. Sadly, though, it does not appear to cover restaurants.

Hyogo initially planned to extend the total ban to private establishments, including department stores, hotels and restaurants, but was forced to back down in the face of stiff opposition from local business groups.

Private establishments will instead be required to set up smoking and nonsmoking sections by April 2014. Offenders could be slapped with a fine of up to ¥300,000.

Hyogo Prefecture is now the second in Japan to introduce such a ban. The first ban was implemented by Kanagawa Prefecture, which came into effect on 1 April, 2010.

It seems like the movement to ban smoking in Hyogo is quite a sophisticated one – they have a fairly thorough website that is worth checking out. It’s a good resource for anyone interested in smoking in Japan. As an aside, you may also want to check out 25 Cafes – a good site which has a review of non-smoking cafes. It’s currently limited to Tokyo, but my understanding is that the author plans on expanding its scope.

You should also check out my earlier post on Non-Smoking Japan!

Below the fold is a PDF summary of the history of tobacco control in Japan prepared by the World Health Organisation. Read more…

So it seems that the concept of government responsibility re: a Non-Smoking Japan may indeed have reached our shores like the black lung ship of Commodore Perry… or perhaps not.

According to the Yomiuri Shimbun today, the Ministry of Health, Labour and Wealth are “attempting” to “set a target for the proportion of smokers”:

厚生労働省が宿願としている「成人の喫煙率の数値目標設定」に再挑戦する。

同省はこれまでも喫煙率を下げようと、数値目標の導入を打ち出しては、その度にたばこ業界や他省庁などの反対で撤回に追い込まれてきた。今回も先行きは不透明だ。

１日に開催されたがん対策推進協議会で、同省は、喫煙率を４割近く減らし、「２０２２年度までに喫煙率を１２・２％以下にする」という目標を盛り込んだ基本計画の素案を示し、了承された。２０１０年分の国民健康・栄養調査で、喫煙率は過去最低の１９・５％。このうち３７・６％は喫煙を「やめたい」と答えていた。厚労省はこの全員が禁煙したと仮定して目標を決めた。

同省は、これらの数値を来年度からの「がん対策推進基本計画」などに取り入れる意向。数値目標が実現すれば初めてだが、同計画は閣議決定事項のため、全省庁の了解が必要になる。

As explained in the text above, according to the 2010 National Health and Nutrition Examination Survey, the proportion of smokers in Japan dropped to 19.5% – the lowest ever percentage of the population. Of those who responded that they smoked, 37.6% claimed that they wanted to quit, thus making theoretically possible the proposed decrease of 40% in the proportion of smokers by 2022.

Note, however, that the final paragraph of the article states that the implementation of the plan requires the approval of all the ministries – and herein lies the problem… Read more…

J. Mark Ramseyer posted  ”Insider Trading Regulation in Japan” on SSRN (download).

The abstract is as follows:

The U.S.-controlled occupation imposed on Japan in the late 1940s an American-style securities statute. The U.S. statute did not ban insider trading at the time, and neither did the new Japanese law. Not until the 1960s did U.S. prosecutors and judges start to criminalize insider trading. Their Japanese counterparts did not follow their lead, and as of the mid-1980s had left insider trading largely unpoliced.

In 1988, the Japanese Diet banned and criminalized insider trading. Rather than use a vague rule like 10b-5, it carefully specified which investors, which trades, and which contexts would trigger the ban. In 2004, it added an administrative surcharge regime.

Commentators in Japan ostensibly urged the Diet to adopt the bill because they hoped to restore investor confidence in the stock market. If the ban restored investor confidence, it did not show. Shortly after the ban took effect, the Japanese stock market collapsed.