The Legal Character and Practical Implementation of a TRIPS Waiver for COVID-19 Vaccines
Andrew D. Mitchell, Antony Taubman, & Theodore Samlidis
Article
The full text of this Article may be found here.
33 Fordham Intell. Prop. Media & Ent. L.J. 100 (2022).
Article by Andrew D. Mitchell,* Antony Taubman,** and Theodore Samlidis***
ABSTRACT
[A]
lmost two years after initial proposals for a COVID-19 waiver of TRIPS obligations, a Ministerial decision adopted at the 12th Ministerial Conference in June 2022 waived obligations under Article 31(f) and the System for pharmaceutical export under the TRIPS Annex, and clarified existing options under TRIPS for increasing access to COVID-19 vaccines. As support for a more expansive pandemic waiver continues and WTO waivers remain legitimate mechanisms under WTO law, further waivers may be contemplated as viable options to address obstacles identified in the current pandemic or future health crises. This article explores what additional options are or may be open to Members under a COVID-19 waiver in its current or proposed forms, and the practical considerations for implementing them. To guide practical choices in selecting appropriate and adapted responses to public health and other crises, this article also investigates more theoretical questions about the nature of a waiver, its legal character and effect, and its interaction with other international agreements.
This article is based on research that was commissioned and supported by funding from the United Nations Economic and Social Commission for Asia and the Pacific. The views and opinions expressed in this article do not in any way necessarily reflect those of the authors’ respective organizations. The authors would like to thank Kaarlo Castren, Sam Ricketson, Mark Davison and William Liu for their helpful comments. Any errors or omissions are the authors’ own.
* Professor, Associate Dean (Research), Faculty of Law, Monash University. Email: andrew.mitchell@monash.edu; orcid.org/0000-0001-8399-8563.
* Director, Intellectual Property Division, World Trade Organization. Email: antony.taubman@wto.org; orcid.org/0000-0001-7608-523X. This article does not present any views or legal analysis that can be attributed to the WTO, its Secretariat, or its Members. Portions of this article, contributed by this author, draw on material prepared for a concurrent Ph.D. dissertation, entitled Towards the ‘Collective Management’ of TRIPS, at the University of South Australia.
*** Researcher. Email: theodoresamlidis@gmail.com.