Grand River Enterprises Six Nations, Ltd., et al. v. US
Several members of the tobacco industry contended that actions taken by various states in the U.S. to implement the 1998 Master Settlement Agreement violated their rights under NAFTA. The Tribunal found that it lacked jurisdiction over all but one of the claimants. The Tribunal ruled against the surviving claimant, finding that contrary to the claimants' expropriation claim, the claimant had not been deprived of ownership or control of his business importing and distributing cigarettes, he did not establish that he had been denied national or most-favored-nation treatment, and he failed to establish that his treatment did not conform to the customary minimum standard of treatment required by NAFTA.
Grand River Enterprises Six Nations Ltd and ors v United States, Award, ICSID Case No Case ARB/10/5, IIC 481 (2011), 12th January 2011, ICSID.
United States
Jan 12, 2011
International Center for Settlement of Investment Disputes
Tobacco companies or front groups may challenge any legislative or regulatory measure that affects their business interests. Unlike public interest litigation, these cases seek to weaken health measures. These cases frequently involve the industry proceeding against the government. For example, a group of restaurant owners challenging a smoke free law as unconstitutional.
Governments or insurance agencies may seek reimbursement from the tobacco companies for health care costs related to tobacco. The most famous example is the case brought by individual states in the U.S.A. that resulted in the Master Settlement Agreement.
Governments may bring complaints before intergovernmental bodies on tobacco-related issues. For example, one country may complain that another country’s tax regime discriminates against its exported tobacco products. In some cases, a treaty may allow a private party to file a complaint against a government before an intergovernmental body.
A violation of the right to carry on trade, business, or profession of a person’s choice. This right may also be called the right to free enterprise or economic freedom. The industry may argue that a business should be able to conduct its business without government regulation, including whether or not to be smoke free.
A violation of property rights, sometimes in the form of an expropriation or a taking by the government. The tobacco industry may argue that regulations amount to a taking of property rights because they prevent the use of intellectual property such as trademarks.
A claim of an infringement of any international trade agreement, including General Agreement on Tariffs and Trade (GATT), Technical Barriers to Trade (TBT), Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), or bilateral treaties.
The subject matter of the case should be dealt with at a state level or national level.
Type of Tobacco Product
None
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
"That said, the Tribunal believes that a good case could be made that consultations should have occurred with governments of the Indian tribes or nations in the United States whose members and sovereign interests could, and apparently are, being affected by the MSA and related measures to regulate commerce in tobacco. Retail tobacco businesses are in many Indian reservations across the country, constituting important sources of income and catalyzing other economic activity among indigenous communities. The evidence before the Tribunal has shown many of the actual or potential effects of the MSA and related measures on reservation tobacco sales and distribution to reservations retailers. The United States federal government admits to the need for consultations with indigenous communities on legislative and administrative measures affecting them, as a matter of federal policy if not as a matter of international law. 56 However, at the hearing the Respondent's counsel, when questioned by the Tribunal, confirmed that the governments of Indian nations had not been consulted about the MSA."
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
Several members of the tobacco industry contended that actions taken by various states in the U.S. to implement the 1998 Master Settlement Agreement violated their rights under NAFTA. The Tribunal found that it lacked jurisdiction over all but one of the claimants. The Tribunal ruled against the surviving claimant, finding that contrary to the claimants' expropriation claim, the claimant had not been deprived of ownership or control of his business importing and distributing cigarettes, he did not establish that he had been denied national or most-favored-nation treatment, and he failed to establish that his treatment did not conform to the customary minimum standard of treatment required by NAFTA.