University of Nottingham Commercial Law Centre

UNCLC Research Seminar on Vaccine access and Covid waiver in light of overlapping commitments outside TRIPS – Blog

23 March 2022 by Alice Milton

The Commercial Law Centre had the privilege of hosting a discussion on the topic of vaccine access and covid waiver in light of overlapping commitments outside TRIPS. The event was chaired by Professor Estelle Derclaye and the speakers were Professor Henning Grosse Ruse-Khan and Dr Federica Paddeu, both from the University of Cambridge. 

Professor Ruse-Kahn presented the first half of the topic which included an overview of the TRIPs Covid Waiver and what it could allow when interacting with other IP rights commitments. Dr Paddeu then talked through the general international law defences applicable if internal defences fail.

There is an ongoing debate about access to medicines and the extent to which IP is a barrier for this access, especially in poorer countries. If we assume there is an agreed waiver of TRIPS agreement in the case of covid vaccines, this raises the question of how the waiver relates to other existing commitments. FTAs, for example, pose little problem as more recent agreements already defer to TRIPS flexibilities and it is unlikely for countries to sue based on this. As Dr Ruse-Kahn explained, what is more problematic is investment protection in relation to IP. Most international investment agreements (IIAs) include international property rights (IPRs) within their definition of investment however, merely holding an IPR might not be sufficient. In ISDS proceedings, IP-owning investors could claim a breach of fair and equitable treatment (FET) regarding implementing the waiver. In general, many IP-specific clauses suggest that TRIPS can override certain commitments.

Many of these scenarios are dependent on whether the waiver is a narrow or broad one. The recent compromise text (essentially a ‘multilateralised’ Article 31bis mechanism) would be narrower and therefore less likely to be in conflict with overlapping commitments.

If the internal defences fail, the attention turns to general defences in international law, presented by Dr Paddeu. There are two relevant defences, necessity, and consent, which are codified in articles on state responsibility. The necessity defence means that if the waiver is incompatible, the state must show that its conduct is the only way to protect its interest. However, there must also be non-contribution i.e., the state must show it has not done anything to affect the risk too greatly. This element has very strict standards and it is still unclear what the states must argue and prove.

Additionally, the ‘only way’ criterion means that conduct must be shown to be the only way to protect the relevant interest. This is often where the defence fails in situations where no single measure can be taken. The case law is also inconsistent on whether a package of measures would count. Regarding the waiver, it would be difficult to argue using the ‘only way’ defence, although not impossible as vaccines are key to protecting citizens. The defence of consent means that a state agrees to non-performance of on one of its rights so that another state is no longer obligated. There are no restrictions on formality so consent could be found implicitly in language and voting patterns. The consent defence is simpler than necessity but is difficult to establish clearly.

In the discussion following the presentation, several interesting points were added. The waiver debate has also served as a threat for pharmaceutical companies to do more. However, this still leaves the key problem that richer countries have the advantage. Vaccine producers also only reveal some of the information as much of the production process is held as trade secrets. Whether this mechanism becomes more permanent following the covid discussions depends on the willingness of the US and EU. Further discussion could then be had on whether the general defences would still be applicable.

University of Nottingham Commercial Law Centre

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