This research project encompasses two in-depth case studies. The first case-study examines the impact of increased international protection of intellectual property over the last three decades, with the conclusion of the WTO-TRIPs Agreement (‘Trade-Related Aspects of Intellectual Property Rights’) as a key milestone. Intellectual property protection has become an important aspect of economic globalization, especially as the world moves towards a knowledge economy. How we regulate this impacts how the economy works and who benefits. What is more, despite reluctance and protests of many developing and least-developed countries, the protection of intellectual property is increasingly included in bilateral agreements on investment and trade, increasing the international standards of protection. More specifically, this case-study assesses the rapid emergence and strengthening of data exclusivity standards in these agreements, and the regulatory protection regime for biologic medicines. In this context, various TRIPs and ‘TRIPs Plus’ obligations have significantly extended pharmaceutical market monopolies, having a severe impact on the access to medicines and pharmaceutical development.
The second case-study takes a closer look at International Investment Agreements (IIAs). International investment law protects foreign direct investment(FDI), private investment in foreign countries. Continuously, new IIAs are negotiated and concluded. Today, over 2500 IIAs firmly protect the rights and interests of foreign investors. Moreover, contrary to their modest fame, these agreements can have a significant impact, primarily by disciplining states’ regulatory actions. This case-study assesses the additional protection offered by IIAs regarding the protection of intellectual property rights, and the procedural features of its distinct dispute settlement mechanism, known as ‘investor-state dispute settlement’ (ISDS). In contrast to traditional state-state dispute settlement, ISDS allows private investors to bring a claim against a state directly. As a result, investors can obtain significant compensations when states impair their investments. In some cases, even regulatory actions intended to protect health, safety or the environment can constitute ‘indirect expropriations’, resulting in such damage-claims. More specifically, this case-study examines the ISDS case of Eli Lilly (a US pharmaceutical firm) against the government of Canada, and the procedural reforms of ISDS proposed by the European Union (EU) in the context of the negotiations with Canada and the United States (US) to conclude new comprehensive economic agreements.
While at first sight these cases might seem unrelated, they both demonstrate how international economic regulations and institutional structures impact how the economy works and who benefits. Moreover, recent evolutions in international economic law have fundamentally changed the economic and regulatory landscape, thereby directly affecting human well-being. Based on concepts of economic and global justice, these regulatory standards are assessed, unfolding important ethical problems. In addition to some adverse impacts on the life and well-being of numerous people (especially in developing countries), the formulation, negotiation and conclusion of the relevant international laws often lack sufficient democratic legitimacy. Moreover, these cases exemplify the problematic relationship between international economic law and international human rights law. This research project aims to unravel these issues and answer the following questions: Can the current international economic rules on intellectual property, investment be justified? Can strict obligations to protect property claims (such as patents and foreign investments) on a global level be legitimate? If such claims are acceptable, what are fair conditions for their global enforcement?