Trade-Related Aspects of Intellectual Property Rights Waiver at the World Trade Organization: A BIT of a Challenge

30 Pages Posted: 16 Aug 2021

See all articles by Prabhash Ranjan

Prabhash Ranjan

Jindal Global Law School, O P Jindal Global University

Date Written: July 15, 2021

Abstract

To augment the global production and distribution of Covid-19 medical products such as vaccines, drugs and other therapeutics, countries are negotiating for temporarily waiving certain provisions of the TRIPS agreement at the WTO. Depending on the conditions that would govern the waiver, countries would amend their domestic intellectual property (IP) laws to effectively implement the waiver. While the waiver would provide immunity to IP-related regulatory measures from legal claims at the WTO, multinational pharmaceutical companies can use the investor-State dispute settlement (ISDS) mechanism under bilateral investment treaties (BITs) to challenge such IP-related regulatory measures. In case of such a challenge to IP-related regulatory measures, will the host State be able to defend these measures? The paper answers this question by dividing the investment treaty practice into those BITs that contain carve-out for IP and those that don’t. The former set of treaties provides greater regulatory autonomy to implement the TRIPS waiver. However, given the fragmented and incoherent nature of the ISDS mechanism, the final outcome would depend on arbitral discretion.

Keywords: TRIPS, bilateral investment treaties, waiver, ISDS

Suggested Citation

Ranjan, Prabhash, Trade-Related Aspects of Intellectual Property Rights Waiver at the World Trade Organization: A BIT of a Challenge (July 15, 2021). Available at SSRN: https://ssrn.com/abstract=3888980 or http://dx.doi.org/10.2139/ssrn.3888980

Prabhash Ranjan (Contact Author)

Jindal Global Law School, O P Jindal Global University ( email )

Sonipat
Sonipat, WA
India

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
217
Abstract Views
847
rank
194,185
PlumX Metrics