Issuance of Compulsory Patent Licenses and Expropriation in Asian BITs and FTA Investment Chapters: A Study of India, China, Malaysia and Thailand
Kung-Chung Liu, Julien Chaisse (Eds) The Future of Asian Trade Deals and IP (Hart Publishing: Oxford: 2019) (Forthcoming).
20 Pages Posted: 27 Nov 2018
Date Written: October 31, 2018
Given the increasing interface between intellectual property rights and international investment law, the aim of this chapter is to examine whether issuance of compulsory patent licenses could be challenged as indirect expropriation under investor state dispute settlement of investment treaties/free trade agreements of India, China, Malaysia and Thailand. The chapter shows that while few investment treaties of these countries exclude issuance of compulsory patent licenses from the ambit of expropriation, many treaties don’t do so explicitly. The chapter discusses that in such treaties if issuance of compulsory patent licenses are challenged as expropriation before an investor state dispute settlement tribunal, the outcome would depend on a number of factors such as the language of the treaty, the interpretative approach that a tribunal may adopts, the degree of interference caused by the issuance of compulsory patent license etc. In order to safeguard regulatory autonomy these countries may consider adopting a model that excludes issuance of compulsory patent licensing from the ambit of expropriation in the investment treaty.
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