The COVID-19 TRIPS Waiver Process in Critical Review: An Appraisal of the WTO DG Text (IP/C/W/688) and Recommendations for Minimum Modifications

10 Pages Posted: 2 Jun 2022

See all articles by Siva Thambisetty

Siva Thambisetty

London School of Economics - Law School

Aisling McMahon

Maynooth University; National University of Ireland, Maynooth (NUI Maynooth) - Department of Law : Ireland

Luke McDonagh

LSE Law; London School of Economics and Political Science

Hyo Yoon Kang

University of Warwick - School of Law

Graham Dutfield

University of Leeds

Date Written: May 31, 2022

Abstract

The original TRIPS waiver proposal made by India and South Africa in October 2020 was based on the need for affordable access to medical products for the prevention, containment of treatment of COVID-19 during the pandemic. That proposal sought to bring into force a waiver of WTO States’ TRIPS obligations with regard to patents, copyrights, industrial designs and undisclosed information as they relate to COVID-19 health technologies. In May 2021, we set out the legal and political case for this principles-based TRIPS waiver. Subsequent negotiations over the waiver have been difficult and protracted. Only in May 2022 did an apparent ‘compromise’ text emerge from the WTO Director General (DG), but without the explicit support of the waiver’s main proponents, India and South Africa, leading to concern over the scope and effectiveness of the DG text. In this paper we provide a short commentary that critiques the WTO DG text’s deficiencies and spells out the minimum modifications necessary for a meaningful workable text for use in the COVID-19 emergency context.

Suggested Citation

Thambisetty, Siva and McMahon, Aisling and McDonagh, Luke and Kang, Hyo Yoon and Dutfield, Graham, The COVID-19 TRIPS Waiver Process in Critical Review: An Appraisal of the WTO DG Text (IP/C/W/688) and Recommendations for Minimum Modifications (May 31, 2022). Available at SSRN: https://ssrn.com/abstract=4124497 or http://dx.doi.org/10.2139/ssrn.4124497

Siva Thambisetty

London School of Economics - Law School ( email )

Houghton Street
London WC2A 2AE, WC2A 2AE
United Kingdom

Aisling McMahon

Maynooth University ( email )

Maynooth, County Kildare
Ireland

National University of Ireland, Maynooth (NUI Maynooth) - Department of Law : Ireland ( email )

Maynooth
Ireland

HOME PAGE: http://https://www.maynoothuniversity.ie/people/aisling-mcmahon

Luke McDonagh (Contact Author)

LSE Law ( email )

United Kingdom

London School of Economics and Political Science ( email )

United Kingdom

Hyo Yoon Kang

University of Warwick - School of Law ( email )

Gibbet Hill Road
Coventry CV4 7AL, CV4 7AL
United Kingdom

HOME PAGE: http://hyoyoonkang.com

Graham Dutfield

University of Leeds ( email )

School of Law
Liberty Building
Leeds, LS2 9JT
United Kingdom
0113 343 1606 (Phone)

HOME PAGE: http://leeds.academia.edu/GrahamDutfield

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