Alsulami, Abdulrahman Fahim M (2021) The Impact of Bilateral Investment Treaties on Health-related Intellectual Property Rights in the TRIPS Agreement. PhD thesis, Victoria University.

Abstract

The COVID-19 pandemic created unprecedented challenges for the international community. One of the most pressing issues of 2021 is the need to balance between private rights and public interests when addressing equitable access to COVID-19 vaccines. The thesis determines whether bilateral investment treaties and treaties with investment provisions appropriately balance the rights and interests of intellectual property right holders, investors, and the public in Saudi Arabia and Australia on the issue of COVID-19 vaccine development, manufacturing, and distribution in light of the TRIPS Agreement. The thesis uses the methodologies of qualitative content and legal interpretation analysis. The thesis first investigates the nature and distinctive features of investment treaties signed by Australia and Saudi Arabia during the COVID-19 crisis. It then explores the application of these treaties and the TRIPS Agreement to the regulation of health-related IP rights and investigate areas of congruence and divergence between the treaties and the TRIPS Agreement regarding the regulation of health-related IP rights. Further, the clarification of priorities in the case of overlap and the existing dispute resolution mechanisms in light of the COVID-19 crisis are explored. Finally, key implications of the pandemic for regulating health-related IP rights related to the development and distribution of COVID-19 vaccines are identified, and the compliance of vaccine deals negotiated by Saudi Arabia and Australia with the TRIPS Agreement and investment treaties are evaluated. The study results show that both countries have experienced certain problems in conducting vaccination campaigns; nonetheless, their vaccine agreements provide a sufficient number of doses for their populations. Regarding bilateral treaties signed by Australia and Saudi, most are in line with the TRIPS rules and do not prevent use of the flexibilities offered by the TRIPS Agreement to overcome the pandemic’s spread. The Australia–U.S. free trade agreement is a significant exception. This agreement prevents the Australian government from utilizing parallel importation to obtain additional doses of certain vaccines and complicates the use of compulsory licenses due to restrictions put on the transfer of know-how. This is a significant reduction of the benefits which would otherwise be available under the TRIPS agreement. The research concludes that the existing flexibilities of the TRIPS Agreement enable flexible arrangements to facilitate vaccination campaigns in Australia and Saudi Arabia if they are available under bilateral investment treaties. In particular, the proposed TRIPS Waiver has the potential to make significant contributions to vaccine availability as long as it is not negated by bilateral treaties.

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