[Ip-health] specific examples of IP dangers in investment clauses

Riaz K Tayob riaz.tayob at gmail.com
Sun Apr 10 07:06:38 PDT 2011

On 2011/04/08 09:15 PM, Baker, Brook wrote:
> Second, unless countries do everything exactly according to domestic law, TRIPS, and the FTA/EPA then even a minor slip-up in issuing a compulsory license could result in an investor suit.  Likewise, issuing compulsory licenses on more than a very occasional basis could be considered abusive or discriminatory and thus give rise to investor claims.

The issue of the tribunal needs also to be considered. What is allowable 
under domestic law may not be allowed under international obligations. 
In other fora, like monist international law regimes, the various 
agreements could be cumulative where 'the whole may be greater than the 
sum of the parts'.

> Fourth, countries could be inhibited in enacting other measures to lower drug costs, for example adopting price controls, therapeutic formularies, and even stricter registration standards.

The GATS disciplines also need to be considered. In sectors that have 
been liberalised (for instance, insurance/retail) regulations need to be 
no more burdensome than "necessary",  anticipated at the time the sector 
was liberalised and should be only with a view to prevent deceptive 
practices and ensure the quality of the service.

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