The leaked Trans-Pacific Partnership Investment Chapter has been analyzed extensively with respect to its dangerous intellectual property protections and enhanced enforcement mechanisms and its equally dangerous extra-judicial investor-state dispute settlement (ISDS) provisions. In contrast, this analysis focuses on the particular risks of the Investment Chapter with respect to access to medicines because of the direct and indirect inclusion of intellectual property rights in the Chapter’s coverage.
These risks are cumulative because of other provisions in the proposed US IP chapter that would strengthen, broaden, and lengthen intellectual property rights with respect to pharmaceutical patent, data, and pricing provisions and that would expand both private IP enforcement mechanisms via mandatory injunctions and expanded damages and impose new enforcement obligations on governments in terms of border measures and criminal enforcement. In essence, the IP-Chapter gives IP-“investors” new substantive “investment rights” upon which to base their abusive ISDS claims against sovereign governments’ regulations and adjudicatory decisions.
There are four main dangers in the Investment Chapter that threaten access to medicines:
- First, the minimum standard of treatment, including fair and equitable treatment, and indirect expropriation concepts contain significant ambiguities that could greatly restrict countries’ ability to enact, use, and defend flexibilities that enhance access to medicines.
- Second, it is dangerous to include IP rights at all in the investment chapter, given the extensive private enforcement rights that rightholders already have, including administrative remedies at borders and judicial remedies for infringing conduct, and given drug companies’ proclivities to bring suits against governments.
- Third, the bracketed limited exception to IP-related investment rights for compulsory licenses does not provide the security against investor claims that TPP Parties might need to safeguard TRIPS-compliant measures that promote access to affordable medicines for all as promised by the Doha Declaration on the TRIPS Agreement and Public Health.
- Finally, the Investment Chapter prevents certain performance requirements that in the IP context might give developing countries the leeway to develop domestic pharmaceutical manufacturing capacity in order to ensure a self-sufficient and uninterrupted supply of medicines and to legitimately promote their own industrial development.