Compulsory Licensing and Public Health: TRIPS-Plus Standards in Investment Agreements

The effects of increasing intellectual property protection on public health have been hugely debated, especially after the coming into force of the TRIPS Agreement and with the emphasis on the utilization of compulsory licenses. At the same time, a growing network of bilateral and regional treaties that regulate foreign direct investment in the absence of an equivalent multilateral instrument are encompassing intellectual protection rules known as TRIPS-plus. A consequence of bringing investment and intellectual property under the umbrella of rules about expropriation and compensation is the potential application of such rules in cases of compulsory licenses. This article contends that, from a legal and economic perspective, investment rules on expropriation and compulsory licenses do not allow such extension. However, the controversy surrounding the interpretation of the proper grounds on which to grant compulsory licenses suggests that investment agreements might have the effect of further limiting the use of such licenses by developing countries. This result would contradict both the spirit of the Doha Declaration on the TRIPS Agreement and Public Health and national practices allowing the use of different kinds of compulsory licenses.