From proposal to compromise: the TRIPS waiver debate and the crisis of WTO decision-making

Abstract

The Marrakesh Agreement, which established the World Trade Organization (WTO), permits WTO member countries to jointly decide to temporarily suspend certain obligations under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement). The TRIPS Decision adopted at the 12th WTO Ministerial Conference in June 2022, following 20 months of extended negotiations during the COVID-19 pandemic, approved only a limited portion of the waiver proposal originally submitted by India and South Africa. Since the Decision was adopted, WTO members have faced a deadlock over whether to extend its scope to include COVID-19 diagnostics and therapeutics, despite being required by the Decision to reach a conclusion on this issue within six months. This paper re-examines the discussions surrounding the potential expansion of the Decision and argues that including COVID-19 diagnostics and therapeutics within its scope was both appropriate and necessary. In addition, the paper proposes ways to make effective use of TRIPS flexibilities during a pandemic, so that developing countries are not left dependent on unpredictable waiver negotiations. The paper also outlines possible approaches for reforming the waiver decision-making process, aiming to ensure that such decisions are made promptly and efficiently, without prolonged negotiations during times of emergency. Clinical trial number Not applicable.