MJIEL Vol 5 Issue 3 2008 - Article 3

Abstract: Intellectual Property Rights (IPR) are part of the definition of investment in numerous International Investment Agreements (IIAs) signed at the bilateral and regional level by different countries. The inclusion of IPR in the IIAs may pose problems when a country temporarily suspends the medical patent held by a particular investor by issuing a compulsory license (CL) because such suspension may be construed as expropriation under an IIA. This issue is particularly important when viewed in light of the fact that the Doha declaration on TRIPS (Trade Related Aspects of Intellectual Property Rights agreement) and public health clearly recognise the right of member countries to use flexibilities like CL to mitigate any adverse impact of medical patents on accessibility of medicines. However, if issuance of CL for public health is construed as expropriation under an IIA, then countries may be deterred to make use of these policy flexibilities. Further, if issuance of CL is held as expropriation then a conflict may arise for the compensation to be paid because the compensation to be paid for issuing CL under TRIPS may be different from the compensation to be paid under an IIA. This paper analyses these issues in the context of India, which has signed numerous IIAs that have IPR as part of the definition of investment. The paper discusses the definition of investment and expropriation provisions in Indian IIAs to show that problems may exist if India were to issue a CL as such issuance of CL could be construed as expropriation under an Indian IIA although it may be consistent with the TRIPS agreement. 

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