War, armed conflict, and the security exception in the TRIPS Agreement

This article critically examines the meaning and scope of the security exception in Article 73(b)(iii) of the TRIPS Agreement (which mirrors Article XXI(b)(iii) of the GATT) in the context of the ongoing Russia-Ukraine war. Drawing on the seven relevant decisions of the WTO dispute settlement panels that have considered both Article XXI(b)(iii) of the GATT and Article 73(b)(iii) of the TRIPS Agreement, this article provides key insights and clarity regarding some of the controversial issues and questions that have arisen regarding these provisions, especially as it concerns measures relating to intellectual property rights that have either been implemented or proposed in response to the ongoing armed conflict. Among other things, the article demonstrates that the phrase ‘emergency in international relations’ encompasses situations other than war and armed conflict. It also clarifies that it is not within the competence of WTO Panels to attribute responsibility for a war or an emergency in international relations. Finally, the article contends that third party states that are not directly involved in the ongoing war, but that have been affected by the conflict, can also implement intellectual property-related sanctions pursuant to Article 73(b)(iii) of the TRIPS Agreement

International investment law, intellectual property and development

This Perspective explores the interrelation between the international investment law (IIL) regime and the host countries’ intellectual property policy space. It then suggests how host countries can shape their international investment agreements to ensure their consistency with the domestic IP legal framework and that both regimes contribute to economic development

国际投资法、知识产权与经济发展

This Perspective explores the implications for the home countries of large MNEs of the agreement reached by over 140 countries in 2021 to enact a corporate minimum tax of 15%. It argues that the corporate minimum tax complements the trend to reduce the negative impact of unfettered globalization on labor, and it protects the ability of home countries to finance a robust social safety net. Home countries should adopt the corporate minimum tax, and that includes the US, which last year failed to adapt its Global Intangible Low-Taxed Income approach to the corporate minimum tax

Equity in Global Health Law - Policy Brief

Equity has been sorely lacking in pandemic preparedness and response, and COVID-19 is but the latest example (O’Cuinn and Switzer, 2019; Rourke, 2019). The response to COVID-19 was characterised by nationalism, inequity in access to diagnostics, vaccines, therapeutics and personal protective equipment (PPE) between the Global North and the Global South, as well as discriminatory, and in some instances racist, border closures chiefly impacting low- and middle-income countries. In response to the widespread inequity witnessed during the COVID-19 pandemic, Member States of the World Health Organisation (WHO) are currently negotiating a new international legal instrument - the Pandemic Treaty - intended to prevent pandemics and mitigate associated inequalities such as vaccine access, and improve compliance with international law during pandemic events. From the initial proposal for the Treaty, through the many rounds of discussions that have occurred to date, it is clear that the new instrument is intended to be grounded in equity, with equity positioned as both an objective and as an operational output (Wenham, Eccleston- Turner & Voss, 2022). However, while equity is recognised as a general principle of international law, it does not have a precise and defined meaning. From the start of negotiations, it was unclear what an instrument ‘grounded’ in equity should look like, what the principle of equity actually means in this context, and how this principle can translate into meaningful obligations within international law more generally, as well as pandemic preparedness and global health governance specifically. In an attempt to answer these questions, we convened - with the assistance of funding from the Scottish Council for Global Affairs and the ESRC IAA Policy Impact Fund - a workshop at King’s College, London at which we gathered together experts on equity from different disciplinary backgrounds in an attempt to understand and conceptualize equity as a legal concept, charting its history, development and application within both domestic and international law. In the following short discussion, we distill some of the lessons at this workshop from both national law as well as other international arenas, before offering suggestions on how this somewhat opaque concept might be effectively operationalised within the Pandemic Treaty. The aim of this discussion is therefore not to engage in a lengthy, academic literature review of the different conceptions of equity found in academic texts - of which there is an abundance of relevant literature - but rather to offer practical insights to the operationalisation of equity to the Pandemic Treaty. What we find is that there is no ‘one’ way to do equity or for an international agreement to be equitable. Our discussions found that equity must be more than an abstract buzzword - simply inserting the word equity into a legal text does not achieve equity. However, international law offers a number of lessons for responding to instances of inequity arising in the absence of a perfect, overarching functional definition of equity

The Right-to-Education Responsibilities of Book Publishing Companies

The responsibilities of copyright owners, specifically book publishers, should be construed from a human rights perspective. Building on the work of John Ruggie and his ‘Guiding Principles on Business and Human Rights,’ this paper contends that book publishers have a responsibility to respect human rights including the right to education. As it relates to copyright law, respecting the right to education entails respecting the measures that countries have incorporated into their national copyright laws to facilitate access to learning materials. Furthermore, corporate actors that own copyright in learning materials should not use litigation or the threat of litigation to try to prevent teachers and students from relying on limitations and exceptions to copyright to gain access to learning materials

Preserving patent policy space and securing access to medicines in developing countries: the role of states and pharmaceutical corporations

This thesis examines the tension between patent rights and the right to health and it recognizes patent rights on pharmaceutical products as one of the factors responsible for the problem of lack of access to affordable medicines in developing countries. The thesis contends that, in order to preserve their patent policy space and secure access to affordable medicines for their citizens, developing countries should incorporate a model of human rights into the design, implementation, interpretation, and enforcement of their national patent laws. The thesis provides a systematic analysis of court decisions from four key developing countries (Brazil, India, Kenya, and South Africa) and it assesses how the national courts in these countries resolve the tension between patent rights and the right to health. Essentially, this thesis demonstrates how a model of human rights can be incorporated into the adjudication of disputes involving patent rights in national courts. Focusing specifically on Brazil, the thesis equally demonstrates how policy makers and law makers at the national level can incorporate a model of human rights into the design or amendment of their national patent law. This thesis also contributes to the ongoing debate in the field of business and human rights with regard to the mechanisms that can be used to hold corporate actors accountable for their human rights responsibilities. This thesis recognizes that, while states bear the primary responsibility to respect, protect, and fulfil the right to health, corporate actors such as pharmaceutical companies also have a baseline responsibility to respect the right to health. This thesis therefore contends that pharmaceutical companies that own patent rights on pharmaceutical products can be held accountable for their right to health responsibilities at the national level through the incorporation of a model of civic participation into a country’s patent law system

Equity in Global Health Law

Equity has been sorely lacking in pandemic preparedness and response, and COVID-19 is but the latest example (O’Cuinn and Switzer, 2019; Rourke, 2019). The response to COVID-19 was characterised by nationalism, inequity in access to diagnostics, vaccines, therapeutics and personal protective equipment (PPE) between the Global North and the Global South, as well as discriminatory, and in some instances racist, border closures chiefly impacting low- and middle-income countries. In response to the widespread inequity witnessed during the COVID-19 pandemic, Member States of the World Health Organisation (WHO) are currently negotiating a new international legal instrument - the Pandemic Treaty - intended to prevent pandemics and mitigate associated inequalities such as vaccine access, and improve compliance with international law during pandemic events. From the initial proposal for the Treaty, through the many rounds of discussions that have occurred to date, it is clear that the new instrument is intended to be grounded in equity, with equity positioned as both an objective and as an operational output (Wenham, Eccleston- Turner & Voss, 2022). However, while equity is recognised as a general principle of international law, it does not have a precise and defined meaning. From the start of negotiations, it was unclear what an instrument ‘grounded’ in equity should look like, what the principle of equity actually means in this context, and how this principle can translate into meaningful obligations within international law more generally, as well as pandemic preparedness and global health governance specifically. In an attempt to answer these questions, we convened - with the assistance of funding from the Scottish Council for Global Affairs and the ESRC IAA Policy Impact Fund - a workshop at King’s College, London at which we gathered together experts on equity from different disciplinary backgrounds in an attempt to understand and conceptualize equity as a legal concept, charting its history, development and application within both domestic and international law. In the following short discussion, we distill some of the lessons at this workshop from both national law as well as other international arenas, before offering suggestions on how this somewhat opaque concept might be effectively operationalised within the Pandemic Treaty. The aim of this discussion is therefore not to engage in a lengthy, academic literature review of the different conceptions of equity found in academic texts - of which there is an abundance of relevant literature - but rather to offer practical insights to the operationalisation of equity to the Pandemic Treaty. What we find is that there is no ‘one’ way to do equity or for an international agreement to be equitable. Our discussions found that equity must be more than an abstract buzzword - simply inserting the word equity into a legal text does not achieve equity. However, international law offers a number of lessons for responding to instances of inequity arising in the absence of a perfect, overarching functional definition of equity