TRIPS-Plus commitments in mega-regions allow transitional periods for developing countries. They also allow foreign investors to be deprived of rights and privileges, with the obligation for governments to protect these rights. Such obligations can significantly limit a government`s ability to regulate the way businesses operate within their national borders, which can have implications for promoting access to medicines and protecting public health in general. The potential impact on public health of the in-depth investment provisions is highlighted in three areas of concern. First, the extended rights and privileges granted to foreign investors, together with the obligation of governments to protect these rights, should significantly reduce the ability of governments to regulate the way companies operate within their national borders. Current disputes over tobacco regulation show the potential public health effects that can result from broad definitions of investment and the obligation to protect investors and their investments. Second, investment rules combine strong investor rights and high standards of protection with a dispute resolution mechanism (ISDR) that would provide the “teeth” needed to enforce these obligations. It is also recalled that intellectual property rights are included in the definition of investment, which would mean that a state measure concerning investors` intellectual property stocks can be considered an “expropriation” or a withholding of “fair and equitable treatment”. This raises concerns about the ability of governments to implement and use the range of adhesive flexibilities, many of which could be considered restrictions or limitations on exclusive patent rights. Although the proposals provide that compulsory licences do not constitute expropriation if such a licence is granted “in accordance with the TRIPS agreement”, this leaves the possibility for investor companies to challenge the compulsory licence with ISDS on the grounds that it does not comply with the trips. One concern is that the extent of investor rights and the ISDS framework could provide a legal framework for companies to challenge any public action and thus create a “chilling effect” on government regulation and action.
Kerr WA (2007) Trade-related intellectual property aspects: enforcement issues. In: Kerr WA, Gaisford JD (eds) Handbook on international trade policy. Edward Elgar, Cheltenham, p. 520-526 The proposed TPP agreement and TTIP go well beyond traditional business considerations and include, among other things, important public intellectual protection and investor protection obligations. Health concerns under the TPP are the result of strengthening existing trade rules and the unprecedented protection of investors and intellectual property rights holders.