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Degen, David B. --- "Thailand’s compulsory licenses and the increase of investment arbitration" [2017] ELECD 825; in Matthews, Duncan; Zech, Herbert (eds), "Research Handbook on Intellectual Property and the Life Sciences" (Edward Elgar Publishing, 2017) 424

Book Title: Research Handbook on Intellectual Property and the Life Sciences

Editor(s): Matthews, Duncan; Zech, Herbert

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781783479443

Section: Chapter 24

Section Title: Thailand’s compulsory licenses and the increase of investment arbitration

Author(s): Degen, David B.

Number of pages: 13

Abstract/Description:

In times of free trade and globalization, the number of international trade agreements continuously grows – often sparking public controversy. One intensely debated issue concerns the impact of investor-state dispute settlement (ISDS) on governmental measures designed to protect public health by making use of the flexibilities provided in the TRIPS Agreement.In the past, Thailand has made use of one core TRIPS flexibility, namely compulsory licensing, to an unprecedented extent in order to enhance public access to medicines in a developing country. While patent owners, industry associations and diplomats accused Thailand of breaching the TRIPS Agreement, no dispute settlement proceedings within the WTO were initiated. However, other governments contemplating broad uses of compulsory licenses may face more legal problems when interfering with intellectual property rights due to the rising number of investment treaties. For example, in a recent ISDS case concerning plain packaging for tobacco products, a tobacco company based its compensatory claims on the disappointment of legitimate expectations due to the state’s supposed non-compliance with provisions of the TRIPS Agreement.This line of argument raises the concern that if investment claims can be based on the law of the TRIPS Agreement, investment treaties could serve as a vehicle to indirectly impose ISDS on the law of the WTO.