AGS has undertaken a wide range of work in the international arena in 2012 –13. This ranged from the continuation of high-profile challenges to the tobacco plain packaging legislation brought against Australia, to commercial negotiations surrounding international construction projects.
International contract negotiations
AGS has provided advice to the Department of Foreign Affairs and Trade (DFAT) on the building and construction of the new embassy complexes in Indonesia and Thailand. Led by Simon Konecny (Deputy General Counsel Commercial), we assisted DFAT in contracting for the construction of the embassy complexes and related project management and construction management services. This was a fully-designed project that permitted the use of more traditional contract strategies which, in turn, achieved greater clarification of risk allocation between the contracting parties and greater pricing certainty.
Regional processing centres – Nauru and Manus Island
AGS also assisted the Department of Immigration and Citizenship in negotiating arrangements for the establishment of a regional processing facility in Nauru, both at tender and contract stages. The key issues in this transaction were the need for flexibility in identifying the Department's requirements, and a short timeframe. AGS advised that in the circumstances, the strategy that best suited the Department's requirements was a relationship-type contract, giving the Department flexibility to vary the project and to allow early commencement. Simon Konecny, Fiona Mackrell (Senior Lawyer) and Kate Cabot (Lawyer) worked on the facilities contracts.
AGS's Kenneth Eagle (Senior Executive Lawyer) and Cathy Reid (National Group Manager Commercial) also assisted the Department with the negotiation of contracts to provide services associated with the transfer of people to and the ongoing operation and management of the regional processing centres on both Nauru and Manus Island. These contracts needed to be negotiated in very short timeframes and allow for sufficient flexibility to enable the scope of the services to be adjusted to meet the changing requirements.
Tobacco plain packaging litigation
Led by Simon Daley PSM (Chief Solicitor Dispute Resolution) an AGS team worked on the investment treaty arbitration brought by Philip Morris Asia against the Commonwealth under the 1993 Agreement between the Government of Australia and the Government of Hong Kong for the Promotion and Protection of Investments. The arbitration (ongoing at the time of this report) is being conducted under the United Nations Commission on International Trade Law Arbitration Rules 2010.
Philip Morris Asia has claimed that the plain packaging legislation constitutes a breach of a number of Australia's obligations under the agreement with Hong Kong. The arbitral Tribunal has been constituted and the Tribunal has determined that Singapore will be the seat of the arbitration.
The first procedural hearing was held on 30 July 2012 and a timetable has been fixed for the further conduct of the matter. AGS is representing the Commonwealth and is instructing a team of Australian and international counsel led by the Solicitor-General, Justin Gleeson SC.
AGS also assisted DFAT with aspects of the challenges to the plain packaging legislation brought against Australia in the World Trade Organisation (WTO). Ukraine, Honduras, the Dominican Republic and Cuba have claimed that Australia's plain packaging measure is inconsistent with certain obligations under the WTO Agreements on Trade-Related Aspects of Intellectual Property Rights, Technical Barriers to Trade, and the General Agreement on Tariffs and Trade 1994.
The AGS team worked closely with the Office of International Law in the Attorney-General's Department, DFAT and the Department of Health and Ageing on these matters.
This is an extract from the 2012–13 AGS annual report