Safeguarding public welfare? Intellectual property rights, health and the evolution of treaty drafting in international investment agreements

Abstract

Despite being included within the scope of International Investment Agreements (IIAs) for many decades, several recent high-profile cases have revealed the extent to which intellectual property rights (IPRs) can be deemed investments under an IIA. With substantive standards and textual language differing between and among the more than 3000 IIAs the situation is highly fragmented. Health advocates are concerned that non-discriminatory measures taken to promote health and safeguard public welfare may be deemed to violate an obligation under an investment treaty. Certain governments have been responsive to this concern and have begun to refine and improve the textual language of treaties. This chapter evaluates the most recent treaty language used in relation to IPRs and public health, with a particular focus on treaties negotiated by the United States and the European Union. The chapter finds that governments which are making efforts to safeguard public health and welfare are indeed providing enhanced protection for public welfare measures in key parts of IIAs, namely clauses on expropriation, fair and equitable treatment and through the use of stand-alone provisions. That being said, the article does identify potentially problematic textual language which warrants further consideration from treaty drafters in the future.