US-China trade deal: preliminary analysis of the text from WTO perspective
By Peter Lunenborg
The long-awaited ‘Phase 1’ trade deal between the United States and China, officially termed the ‘Economic and Trade Agreement between the Government of the United States of America and the Government of the People’s Republic of China’, was signed on 15 January 2020. It will enter into force on Valentine’s Day, on Friday, 14 February 2020. This deal is a result of US exercise of political power and unilateral World Trade Organization (WTO)-inconsistent tariffs in order to extract trade concessions, an expression of the most pure protectionism that the WTO is supposed to prevent. Nevertheless, the WTO was unhelpful in addressing the US economic aggression against China. This failure to protect a Member from illegitimate unilateral measures is, perhaps, one of the most significant manifestations of the often-mentioned ‘crisis’ of the WTO, and actually is one of the subjects on which the proposed ‘reform’ of the organization should focus.
Intellectual Property and Access to Medicines: An Introduction to Key Issues – Some Basic Terms and Concepts
Intellectual property and patents in particular, have become one of the most debated issues on access to medicines, since the creation of the World Trade Organization (WTO) and the coming into force of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Patents are by no means the only barriers to access to life-saving medicines, but they can play a significant, or even determinant, role. During the term of patent protection, the patent holder’s ability to determine prices, in the absence of competition, can result in the medicine being unaffordable to the majority of people living in developing countries. This first issue of the “South Centre Training Materials” aims, in its first part, to provide an introduction to key issues in the field of access to medicines and intellectual property. The second part describes and defines some basic terms and concepts of this relatively new area of pharmaceuticals policies which are the trade related aspects of intellectual property rights that regulate the research, development and supply of medicines and health technologies in general.
Intellectual Property under the Scrutiny of Investor-State Tribunals
Legitimacy and New Challenges
By Clara Ducimetière
In 2009, C.S. Gibson was suggesting that: “With this early coverage of intellectual property in BITs, it is perhaps surprising that there has yet to be a publicly reported decision concerning an IPR-centered investment dispute. Given the trajectory of the modern economy, however, in which foreign investments reflect an increasing concentration of intellectual capital invested in knowledge goods protected by IPRs, this could soon change”. A couple of years later, the first investment cases dealing with IP issues were made public.
In this context, this paper first addresses the conditions that have to be fulfilled in order to bring intellectual property claims in investment arbitration, by touching upon the question of the definition of an investment in theory and in practice. It also tries to shed light on some of the implications of recent arbitral awards touching upon this interaction between intellectual property and investment protection, from a legal and regulatory perspective.
On the other hand, the specific situation of the European Union is scrutinized, and in particular the project put forward by the European Commission to adapt the dispute settlement system for the protection of investments.
‘Phase 1B’ of the African Continental Free Trade Area (AfCFTA) negotiations
By Peter Lunenborg
The African Continental Free Trade Area (AfCFTA), which entered into force on 30 May 2019, represents a unique collaborative effort by African countries to bolster regional and continental economic integration, in a world marked by increasing protectionism and use of unilateral trade measures.
In order to make the agreement operational for trade in goods, negotiations on tariff concessions need to be concluded and negotiating outcomes need to be inserted into the agreement. This policy brief focuses on the expected economic impacts of tariff liberalization under the AfCFTA, the tariff negotiation modalities and discusses some legal and practical issues related to the implementation of these modalities.
Challenges of Investment Treaties on Policy Areas of Concern to Developing Countries
By Kinda Mohamadieh
Country experiences have revealed that international investment agreements (IIAs) could have an adverse policy impact on various policy areas that are generally important for developing countries in relation to the achievement of their development objectives. This policy brief gives an overview of challenges resulting from IIAs to major policy areas of concern to developing countries. These policy areas include industrial policy, tax reform, handling debt crisis, the use of capital controls, intellectual property rights, public-private partnerships, and climate change action in relation to investment in clean technologies.
How international investment agreements have made debt restructuring even more difficult and costly
International investment and trade agreements are legally binding international treaties which give investors an additional layer of legal protection on top of the host country law and contract law. However, little efforts have been made in ironing out the interface between these different laws and treaties. Inconsistencies and even contradictions have emerged in dispute settlement decisions, sometimes at the expense of public good, sovereignty and financial and economic stability. An asymmetry seems to exist in the allocation of risks and benefits between investors and recipients of investments. (more…)
Implications of a US Border Adjustment Tax, Especially on Developing Countries
A new protectionist device, the US “border adjustment” tax, is being planned that could devastate the exports of developing countries and cause American and other foreign companies to relocate. This policy brief explains the complexities and implications of this proposed measure and the major question of whether such a measure will violate the rules of the WTO is also examined.
The Experience of Sri Lanka with International Investment Treaties
This policy brief gives an overview of Sri Lanka’s experience with investment treaties, including highlights from a study undertaken by the authors in regard to the interface between BITs and FDI inflows. The brief also reviews international trends in relation to re-negotiating BITs and discusses the elements driving these trends, offering insights into the factors shaping this discussion in developing countries. (more…)
Approaches to International Investment Protection: Divergent Approaches between the TPPA and Developing Countries’ Model Investment Treaties
While the international investment treaty regime is at a conjuncture, States face the challenge of designing reforms that would result in systemic solutions, and not merely cosmetic changes, to the challenges emerging out of the existing regime and the ISDS mechanism it embodies. (more…)
India’s Experience with BITs: Highlights from Recent ISDS Cases
This brief argues that there is a case for a review of India’s bilateral investment treaties (BITs). The author recommends that the review should cover, inter alia, issues of more favourable treatment of foreigners compared to locals, and limitations on policy space of the government to address public interest concerns, in particular, those in the areas of public health and environment. (more…)
Indonesia’s Perspective on Review of International Investment Agreements
The South Centre releases a new policy brief series focusing on international investment agreements and experiences of developing countries.
As part of this series, the publication of Investment Policy Brief No. 1 entitled by Mr. Abdulkadir Jailani briefly describes Indonesia’s experience with at least six investor-state dispute settlement (ISDS) cases. It also explains Indonesia’s decision to discontinue its existing international investment agreements (IIAs); to date, 17 out of 64 IIAs have been discontinued by Indonesia. The paper explains the rationale for this important policy measure. (more…)