Compulsory licences and ISDS in Covid-19 times: relevance of the new Indian investment treaty practice

Abstract

As the world grapples with the Coronavirus disease (Covid-19)—the worst pandemic in the last 100 years— war-like efforts are being made to find a vaccine or a cure for the disease. Indeed, a few newly developed Covid-19 vaccines have already been approved for public use. At the same time, given the concerns of vaccine nationalism—countries pushing to get first access to Covid-19 vaccines—many are filled with consternation about the timely and equitable access to medicines and vaccines. This concern has been outlined by countries like India and South Africa who in their recent proposal to the World Trade Organization (WTO) state: ‘As new diagnostics, therapeutics and vaccines for COVID-19 are developed, there are significant concerns, how these will be made available promptly, in sufficient quantities and at an affordable price to meet global demand.’ To ensure timely and equitable access to Covid-19 vaccines, drugs, and diagnostics, India and South Africa have proposed that, following Articles IX.3 and IX.4 of the Marrakesh Agreement establishing the WTO, certain provisions of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement be temporarily waived or suspended to allow the prevention, containment, or treatment of Covid-19. Such a temporary suspension of the application of the TRIPS Agreement would give complete regulatory freedom to countries to deal with the production and distribution of Covid-19 vaccines, drugs, diagnostics without being concerned about the enforcement and protection of intellectual property rights. This radical proposal stems from the assumption that intellectual property rights such as patents, in certain circumstances, could act as The author