ISDS Reform

Investment Policy Brief No. 24, 9 December 2021

Potential Claims related to IP and Public Health in Investment Agreements: COVID-19, the Proposed TRIPS Waiver and Beyond

By Cynthia Ho

An under-examined issue during the COVID-19 crisis is the potential liability of countries under investment agreements for taking steps to mitigate COVID issues.  This Policy Brief provides an overview of how countries may be liable to companies for taking domestic action to protect public health, including pre-COVID claims related to Intellectual Property (IP), as well as possible claims because of COVID emergency measures, including claims that could result if the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) Waiver was adopted.  The current COVID-19 crisis opens the opportunity to consider and reevaluate the unnecessary threat of international agreements that allow for investment claims and potentially consider their termination.

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SouthViews No. 186, 10 October 2019

Last chance for the Global South? Pursuing the South’s interests in reforming the Investor-State Dispute Settlement system in the multilateral arena

By Jose Manuel Alvarez Zarate and Maciej Żenkiewicz

The current Investor-State Dispute Settlement (ISDS) system is mainly criticized for its lack of transparency, unbalanced rights and obligations between State and investors, and the expansive interpretation of arbitrators of the investment protection treaties’ vague rules. Any reform of the ISDS should benefit developing countries that are facing most of the ISDS claims. The decisions taken at the thirty-seventh session of the United Nations Commission for International Trade Law (UNCITRAL) Working Group III (WGIII) on ISDS Reform (New York, 1-5 April 2019) are likely to influence the way in which the discussions about the reform of ISDS at the multilateral level will go. The developing countries should shape their agenda in such a way to facilitate consensus in the context of advancing their collective interests and perspectives. (more…)

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