Abuse of process under international law and investment arbitration

Philip Morris Asia initiated an investment arbitration against Australia with respect to Australia's tobacco plain packaging measures only a few months after it made its investment in Australia. The initiation of the arbitration raised a concern that the scope of protection under investment agreements and investment arbitration may be manipulated by multinational corporations. The tribunal in this case dismissed all the claims of Philip Morris Asia as inadmissible because it considered that the initiation of the arbitration constituted an abuse of process. While the decision is a positive development of law, at least from the perspective of respondent States, the tribunal did not sufficiently analyze the source and content of the principle of abuse of process. Against this background, this article seeks to clarify what the principle of abuse of process means under general international law and how it should be applied in investment arbitration. For this purpose, this article first examines the application of the principle by international judicial and quasi-judicial bodies other than investment arbitration. It then discusses how the principle should be applied in investment arbitration in light of its particular nature.