Service WTO and Trade Issues (Oct15/02)
Dear friends and colleagues
We are pleased to draw your attention to a recent paper that analyzes the most recently leaked draft Intellectual Property, Investment, and Transparency Chapters and the latest arguments in the Eli Lilly v. Canada investor-state dispute settlement (ISDS) case, to highlight the risk that the TPP's Investment chapter imposes with respect to enhanced enforcement of intellectual property rights (IPRs) as investor rights.
The article warns that the adoption of ISDS for IPRs presents a grave danger to the right to health and the right of access to affordable medicines for all.
Power Unbound: Investor-State Arbitration of IP Monopolies on Medicines
– Eli Lilly v. Canada and the Trans-Pacific Partnership Agreement
PUBLIC LAW AND THEORY FACULTY RESEARCH
This article is not written as an abstract juxtaposition of these two current events. It is written to expose the dangers that countries face, especially low- and middle-income countries, in trade negotiations with the U.S., Europe, and Japan that seek to impose stronger patent, data, and market entry protections and at the same time seek to expand the armamentarium of enforcement powers available to pharmaceutical behemoths. Part II of the paper contains a brief introduction to the international IP regime, namely the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and the TRIPS-plus pharmaceutical protections being sought in the mostly recently leaked TPPA Intellectual Property Chapter and Transparency Chapter still being negotiated between twelve Pacific rim countries. Part III gives a brief historical background on investment treaties and investor-state-dispute-settlement (ISDS). Part IV analyses the TPP Investment Chapter in more depth, particularl y its provisions that deal with protection for and enforcement of IP-related investments. Part IV discusses the pending Eli Lilly v. Canada ISDS arbitration, including the claims and defenses of the parties. Part V concludes with a recommendation that investment chapters be struck from the TPP and other trade agreements or that such chapters should not apply whatsoever to the protection or enforcement of IPRs given the many other enforcement powers available to patent holders. The article claims that extending boundless corporate power to Big Pharma through adoption of ISDS for IPRs presents a grave danger to the communal right to health and the right of access to affordable medicines for all.