Compulsory License for Access to Medicines, Expropriation and Investor-State Arbitration under Bilateral Investment Agreements: Are There Issues beyond the Trips Agreement?

Abstract

In this paper, the author argues that compulsory licenses might potentially amount to indirect expropriation provided that their effects constitute a severe curtailment of the patent rights. Inasmuch as the expropriation standards in BIAs differ from those articulated under the TRIPS Agreement, particularly in the focus of due process and compensation requirements, the ability of developing countries to make use of compulsory licenses at the WTO level might be reduced. Also, regarding the arbitral procedure, it is of much value from the public health perspective that an investor-state arbitration structure could pursue a balanced reform between private investment and pubic policy. It is a matter for deliberation whether an ultimate return to state-state dispute settlement, rather than investor-state arbitration, would be more feasible to settle disputes concerning health-related compulsory licenses under BIAs.

Keywords: public health, access to medicine, compulsory licenses, expropriation, investor-state arbitration, TRIPS Agreement, BIA