Earlier this morning, Wikileaks put out a draft Investment chapter of the controversial Trans-Pacific Partnership (TPP) Agreement, dated 20th January, 2015. To quote Julian Assange on this: “The TPP has developed in secret an unaccountable supranational court for multinationals to sue states. This system is a challenge to parliamentary and judicial sovereignty. Similar tribunals have already been shown to chill the adoption of sane environmental protection, public health and public transport policies.” We’ve previously written about the leaked IP chapter of the TPP Agreement here: “Wikileaked! Leaked IP Chapter of TPP shows that US could be an IP Terrorist”
The Chapter, in Article II.1 (Definitions), specifically mentions that “Investment” includes intellectual property rights – an immediate danger sign. However, there is small consolationin Article 11.7 (Expropriation and Compensation), where it says:
“The Article does not apply to the issuance of compulsory licenses granted in relation to intellectual property rights in accordance with the TRIPS Agreement, or to the revocation, limitation, or creation of intellectual property rights, to the extent that such issuance , revocation, limitation, or creation is consistent with Chapter QQ._ ( Intellectual Property Rights) and the TRIPS Agreement.”
It also clarifies that ‘revocation’ includes cancellation or nullification, and ‘limitation’ includes exceptions to such rights. However, this may not cover ‘novel’ provisions and exceptions which countries may wish to introduce.
Interestingly, it also says that performance requirements don’t apply:
(i) when a Party authorizes use of an intellectual property right in accordance with Articles 31 of the TRIPS Agreement, or to measures requiring the disclosure of proprietary information that fall within the scope of, and are consistent with, Article 39 of the TRIPS Agreement;
or (ii) when the requirement is imposed or the commitment or undertaking is enforced by a court, administrative tribunal, or competition authority to remedy a practice determined after judicial or administrative process to be anticompetitive under the Party’s competition laws.
Like many others, in late 2012 Prof Brook Baker had earlier written a piece here on the dangers of the previously leaked investment chapter and he focused on the harms it could cause on access to medicines. It appears that at least some of those concerns may have been addressed in this latest leak – however, I say that with the explicit disclaimer that I have not read the newly leaked chapter closely yet.
Sean Flynn posts a little more analysis over at Infojustice:
Today’s leak of the Investor State Dispute Settlement (ISDS) chapter proposed for the Trans Pacific Partnership (TPP) agreement would give new rights to private companies to challenge limitations and exceptions to copyrights, patents, and other intellectual property rights in unaccountable international arbitration forums. The text contains the same provisions that are being used by Eli Lilly to challenge Canada’s invalidation of patent extensions for new uses of two medicines originally developed in the 1970s. The same language is also being used by Philip Morris to challenge Uruguay’s regulation of advertising on cigarette packages as an “expropriation” of their trademarks. But the TPP language goes farther. It includes a new footnote, not previously released as part of any other investment chapter and not included in the U.S. model investment text — clarifying that private expropriation actions can be brought to challenge “the cancellation or nullification of such [intellectual property] rights,” as well as “exceptions to such rights.”
The text is available here. Also, readers who missed our post on it may be interested in taking a look at India’s Draft Model Bilateral Investment Treaty that we wrote about yesterday.
