Excluding Intellectual Property from Bilateral Trade and Investment Agreements: A Lesson from the Global Health Crisis

This chapter critically analyses the inclusion of intellectual property (IP) in the investment chapters of free trade agreements and bilateral investment treaties as well as their submission to their related investor state dispute settlement (ISDS). It argues that these developments pose a serious threat to a balanced and ethical innovation system. In part this is because when regulating IP to foster non-economic interests, the possibility of ISDS creates uncertainty about the ability of states to protect human rights and matters of public interest by limiting IP rights, even when such action is perfectly legitimated by the international IP system and its flexibilities. The COVID pandemic health crisis showed how important it can be for the EU, the global community and for individual States to provide access to vaccines and treatment, and how unacceptable it might be for transnational corporations to use ISDS to limit this life-saving activity. As a result, it is argued that IP should in the future be excluded from the investment chapter of bilateral trade and investment treaties.