Regime Shifting of IP Law Making and Enforcement from the WTO to the International Investment Regime

Abstract

This article provides new insight to regime shifting and regime complexes through one of the first detailed analysis of the regime shift in intellectual property law making and enforcement from the World Trade Organization to international investment law. Unlike prior cases of regime shifting that have predominantly focused on the efforts of States and NGOs creating counter-norms viz-a-viz those of the WTO’s TRIPS Agreement, the current regime shift is primarily engineered by multinational corporations seeking to destabilize TRIPS flexibilities through investor-state arbitration. Since defending these cases costs countries millions of dollars, this regime shift to investor state arbitration has a significant chilling effect on the regulatory authority of states. We argue and show that by bringing or threatening to bring investor-state litigation to protect their IP rights against countries seeking to protect public health, pharmaceutical and tobacco companies pose a serious threat to the sovereignty of countries to implement the TRIPS Agreement in a manner that balances IP rights against values such as access to affordable medicine. As a consequence this Article argues that this regime shift is significant not only for developing countries, but for developed countries, such as Canada, Australia, and members of the European Union as well. The last part of the article proposes solutions to the challenges that this regime shifting raises. The first set of proposals recommend defining and clarifying key terms in investment treaties to minimize harm to domestic sovereignty as well as to maximize flexibilities under the TRIPS Agreement. The second set of proposals recommend improving the investment dispute process through a variety of reforms.

Keywords: Tobacco, Regime Shifting, WTO, Plain Packaging, Investor-State Reform, TRIPS, Human Rights