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

ABSTRACT

To augment the global production and distribution of Covid-19 medical products such as vaccines, drugs, and other therapeutics, countries are negotiating temporarily waiving certain provisions of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement at the World Trade Organization (WTO). Depending on the conditions that will govern the waiver, countries will amend their domestic intellectual property (IP) laws to effectively implement the waiver. While the waiver will 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 article 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 outcome will depend on arbitral discretion.