Skip to main content Accessibility help
×
Hostname: page-component-cd9895bd7-lnqnp Total loading time: 0 Render date: 2024-12-26T15:29:29.041Z Has data issue: false hasContentIssue false

3 - Pharmaceutical Patents and Expropriation in Indian Bilateral Investment Treaties

from Part II - National Approaches within Asia to the Regulation and Protection of Foreign Investment

Published online by Cambridge University Press:  13 August 2021

Mahdev Mohan
Affiliation:
Singapore Management University
Chester Brown
Affiliation:
University of Sydney
Get access

Summary

Globally, foreign investors are increasingly making use of the investor-State dispute settlement (ISDS) mechanism to challenge host State’s regulatory measures pertaining to intellectual property rights (IPR).Against this global backdrop, this chapter examines whether regulatory measures, in particular the compulsory licensing of pharmaceutical patents - an important public health flexibility measure - amounts to indirect expropriation under India’s bilateral investment treaties (BITs) and investment chapters in India’s free trade agreements (FTAs).The chapter finds that there is no one answer that can be given to this question.The outcome will depend on the language of the treaty.Those BITs and FTA investment chapters that specifically exempt issuance of compulsory licenses from the ambit of expropriation subject to some conditions provide more regulatory space to India.In case of other BITs that are silent on this, the outcome will depend on the approach adopted by the ISDS tribunals that is whether the tribunals relies upon the "sole effects" test or the "police powers" test to determine indirect expropriation.The chapter also discusses the 2016 Indian Model BIT that puts issuance of compulsory licensing outside the ambit of the BIT provided such issuance is consistent with the Trade Related Aspects of Intellectual Property Rights (TRIPS) agreement.

Type
Chapter
Information
Publisher: Cambridge University Press
Print publication year: 2021

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Save book to Kindle

To save this book to your Kindle, first ensure [email protected] is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.

Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Available formats
×

Save book to Dropbox

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.

Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

Available formats
×