Beyond Plain Packaging
Edited by Alberto Alemanno and Enrico Bonadio
Chapter 9: Investment disputes, pharmaceutical patents and health-related goods
AbstractInternational investment law has furthered the protection of pharmaceutical patents, considering it a form of investment and providing patent owners with access to investor–state arbitration. Patent owners can and do use investment treaty arbitration to challenge alleged infringements of patent rights by governments or by third parties under a host government’s jurisdiction. Have arbitral tribunals taken public health considerations into account when adjudicating pharmaceutical patent-related cases? If so, have they considered public health either as an exception to investment treaty standards or as a part of the interpretation of the same standards? What techniques are available to avoid regime collisions between international investment law and other fields including public health law? This study offers a primer on recent investment disputes concerning pharmaceuticals. The underlying assumptions of this chapter are that adjudication is a mode of governance and it has a fundamental importance with regard to the concrete implementation of a given legal regime. The chapter aims to examine the existing investor–state arbitrations concerning pharmaceuticals and to critically assess their potential impact on public health.
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