Access to medicines versus protection of 'investments' in intellectual property:Reconciliation through interpretation?

Intellectual property (IP) is a policy device aimed at promoting inventiveness and public welfare. By giving creators exclusive rights to their creations, it provides an incentive for inventors both to invent and to disclose the fruits of their inventiveness. This dual function is captured in Article 15 of the International Covenant on Economic, Social and Cultural Rights (1966; hereinafter ICESCR), which identifies the need to protect both public and private interests in knowledge creation and diffusion (see also Macmillan in this volume). As the economic pillar of the post-industrial society, intellectual property playsa fundamental role in international relations, and recent developments in international law reflect this socio-economic role (Vadi 2008a). Intellectual property rights have become stronger than ever since the inception of the Agreement on Trade-Related Aspects of Intellectual Property Rights (1994; hereinafter TRIPS Agreement) under the aegis of the World Trade Organization (WTO). In recent years, states have added another layer of protection to intellectual property rights by signing all-encompassing investment treaties. Besides providing extensive protection for investors’ rights, investment agreements offer foreign investors direct access to arbitration against a host state. Crucially, this option opens the door to challenging national regulation that allegedly infringes investors’ rights. This chapter is concerned with the combined impact of intellectual propertyrights and investment agreements upon access to medicines. It first defines the notion of access to medicines. It then explores the interplay between intellectual property and access to medicines in investment law using recent case law. Finally some proposals are put forward in the attempt to reconcile investors’ rights with public health in international investment law