Tobacco companies are preparing to launch what could be one of the biggest ever legal claims against the British Government for losses as a result of the introduction of plain packaging for cigarettes.
They are expected to begin lodging papers at the High Court as early as Friday, seeking a multi-billion compensation payout for being stripped of the right to use instantly recognisable brands.
Lawyers will argue that forcing them to use entirely unbranded packaging would amount to deprivation of a highly valuable intellectual property.
And here’s the interesting thing. They’re not using any of the ISDS routines written into trade law. Just an old fashioned approach to the old fashioned courts.
Perhaps we should have a competition with bonus points for the spotting of outraged articles that manage to miss this? Doulble points of course for people wo argue that this is a reason not to have ISDS in trade deals. When, of course, it means the opposite. If this is a right that investors here get through our own courts, not the ISDS, then that the ISDS extends such rights to people in places where the courts aren’t trustworthy is a good, not bad, idea.
Note that I’m not saying that either the claim, the idea of such a claim, nor this case, are good or bad ideas: only on the sturcture here.