Investor-State Arbitration: A New Threat to Global Access to Affordable Medicine

Abstract

This is an introduction to a new development in the international arena that poses a threat to the ability of countries to tailor patent and regulatory laws to promote access to medicine. Basically, certain international agreements permit foreign companies to sue a country for compensation if their “investments” are compromised and there are two companies that have done so based on IP issues. This chapter explains the domestic and international backdrop, as well as the basics of investment agreements permitting such actions. In addition, it explains the initial IP disputes brought under this system, including Eli Lilly v. Canada (patent rights allegedly compromised), and Philip Morris disputes against Australia and Uruguay (trademarks allegedly compromised).

Keywords: ISDS, investor-state, plain package tobacco, TRIPS, expropriation, FET

JEL Classification: F02, F19, F21, I10, I19, F50, F55, F59, O30, O31, O32, O34, O38, O39, O24, O25, O29