The Legality of a Trips Waiver for Covid-19 Vaccines under International Investment Law

ABSTRACT

This article assesses the arguments and challenges that are likely to arise should investors file an investor-State dispute settlement (ISDS) claim over measures taken in response to a waiver of obligations relating to intellectual property rights (IPRs) under the World Trade Organization's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement). After providing an overview of the proposed waiver of IPRs for COVID-19 vaccinations and treatments, it examines the jurisprudence relating to IP and investor-State arbitration and the grounds upon which investors would rely to make a case in ISDS and possible State defences. The analysis, which focuses on fair and equitable treatment and expropriation, concludes that it will be difficult for investors to succeed in claiming that measures taken in response to a TRIPS waiver of IPRs breach any substantive protection provision contained in an international investment agreement. States should, however, seek additional security by revisiting existing treaties and adding additional layers of safeguards to ensure legitimate and non-discriminatory measures taken in response to a TRIPS waiver do not lead to investor claims.