Hastings International and Comparative Law Review


Intending to promote greater access to Covid-19 vaccines, a group of developing countries submitted a proposal to the World Trade Organization (WTO) recommending a waiver that would temporarily exempt all WTO members from the obligation to comply with Section 5 (Patents) of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement). If approved, states would be permitted to adopt domestic measures suspending the minimum protections afforded to Covid-19 vaccine patents under the TRIPS Agreement. In this article, I consider whether the owners of Covid-19 vaccine patents may have a compensable indirect expropriation claim under investment treaty arbitration against a state waiving their patent rights. My analysis concludes that, under modern treaty practice, the owners of Covid-19 vaccine patents will find it difficult to win on the merits. Nevertheless, states should take precautionary measures to maintain their regulatory space by reviewing their treaties to ensure they include the necessary IP-related safeguards.