Info Service on on Intellectual Property Issues (Mar17/07)
31 March 2017
Third World Network
Reform global IP rights, investor protection regimes
Published in SUNS #8429 dated 24 March 2017
Geneva, 23 Mar (Kanaga Raja) - The United Nations Development Programme
(UNDP) has called for the reform of both the global intellectual property
(IP) rights and global investor protection regimes as one of the options
aimed at making better global institutions by promoting global public
In its chapter on "Transforming global institutions", the
UNDP's Human Development Report 2016 (HDR) said that a fair system
regulating the flow of goods, services, knowledge and productive investment
is a global public good.
In the report, "Human Development for Everyone", the UNDP
said that the world order and its effects on human development depend
on the quality of global institutions.
While national policies can facilitate a country's insertion in global
society, a good economic, social and political order requires institutions
to coordinate the collective actions of all countries, it said.
Among the options for reform cited by the report aimed at making better
global institutions by promoting global public goods are: stabilizing
the world economy, applying fair trade and investment rules, adopting
a fair system of migration, coordinating taxes and monitoring finance
globally, making the world economy sustainable, assuring greater equity
and legitimacy of multilateral institutions, as well as ensuring well
funded multilateralism and cooperation.
FAIR TRADE AND INVESTMENT RULES
On applying fair trade and investment rules, the report said that
international trade has been a strong engine of development for many
countries, particularly in Asia.
But two problems are now crucial. First, trade rules - including their
extension to intellectual property rights and investment protection
treaties - tend to favour developed countries.
Second, world trade has slowed in recent years, which might reduce
opportunities for developing countries.
"The international agenda should be to set rules to expand trade
of goods, services and knowledge to favour human development and the
Sustainable Development Goals," said the UNDP.
For developing countries, one of the most important global public
goods would be "a fair and well functioning" World Trade
There is hope, UNDP said, pointing out that as developing countries
have gained negotiating power, multilateral agreements can, despite
their limitations, become a tool for fairer trade.
The Doha Round intends to add development principles to trade rules,
by introducing implementation issues to ease the ability of developing
countries to perform World Trade Organization obligations, by addressing
imbalances in agricultural subsidy regimes and by strengthening and
operationalizing special and differential treatment.
"Assessing the usefulness of the current intellectual property
rights regime to meet the Sustainable Development Goals could be a
basis for reform," said the report.
The HDR pointed to two Sustainable Development Goals that are particularly
sensitive to property rights: the promotion of healthy life and well-being
for all (Sustainable Development Goal 3) and the technology facilitation
mechanism, introduced in the Addis Ababa Action Agenda (Sustainable
Development Goal 17).
The report noted that the UN Secretary-General's High-Level Panel
on Access to Medicines has recommended that World Trade Organization
members revise agreements on Trade-Related Aspects of Intellectual
Property Rights (TRIPS) to enable a swift and expeditious export of
essential medicines produced under compulsory license to countries
that cannot produce them themselves.
In practice, priority should be given to medicines on the World Health
Organization Model List of Essential Medicines.
A similar principle should be used with the technology facilitation
mechanism: Every year technologies critical to achieving the Sustainable
Development Goals should be identified (in a forum proposed by the
Addis Agenda), as should the obstacles to their adoption.
In this context, said the UNDP, "if intellectual property rights
enforced through World Trade Organization mechanisms prove to be an
obstacle to the timely diffusion of required technology, the international
community must take a hard look at reshaping the way such assets are
protected and remunerated internationally."
Progress in this direction could be particularly important in fighting
climate change, since technology diffusion is essential to decouple
GDP growth from greenhouse gas emissions.
The report said while investors and their property rights have to
be properly defended against arbitrariness, most bilateral investment
treaties with developing countries have been negotiated asymmetrically.
"Developing countries should use the available legal space to
reassess and change the models of these treaties."
The report noted that South Africa, after consultations with the investment
community, has allowed existing bilateral investment treaties to lapse
and locates investor protections in a domestic law effective December
Brazil has negotiated new treaties with Angola, Chile, Colombia, Malawi,
Mexico, Mozambique and Peru based on a core model of investment facilitation
The Brazilian approach generally rejects investor-state arbitration
to resolve disputes. India's new model protects the investor instead
of the investment. And it requires the exhaustion of domestic remedies
before arbitration can be triggered.
The UNDP report highlighted that the current global landscape is very
different from what the world faced in 1990. New global challenges
threaten the 2030 Agenda for "leaving no one behind."
It said inequality and exclusion, violence and extremism, refugees
and migration, pollution and environmental degradation - all are caused
by humans and their interactions, particularly across borders.
That is why their solution depends not only on the actions of individual
countries, but also on the construction of global collective capabilities
to achieve results that no country can on its own.
Uncoordinated national policies addressing global challenges - cutting
greenhouse gas emissions, protecting labour rights, ensuring minimum
incomes, cooperating to strengthen fragile states, providing humanitarian
aid and refuge to those extremely endangered - are bound to be insufficient
because of the existence of externalities.
"So global and regional institutions are necessary to bring systematic
attention, monitoring and coordination to key global issues."
It said that international institutions and the resulting world order
have enabled considerable progress in human development.
But these institutions have also coexisted with persistent extreme
deprivation - leaving behind large segments of the world population
- and persistent human insecurity.
The mixed success calls for reforms, with an agenda that keeps what
works and addresses evident gaps.
The UNDP said that asymmetries persist in the way countries participate
in global markets, in defining rules, in financing compensatory mechanisms
and in having the capacity to pursue accountability.
"These inequalities constitute barriers to practical universalism
and compromise fairness, as some groups have decisive advantages in
defining both the rules of the game and the payoffs. The winners and
losers of globalization depend on the way globalization is pursued,"
the UNDP added.
To respond to these challenges, global institutions can enhance collective
capabilities. They can expand opportunities for international exchange
(including people, knowledge, goods, services and capital), both for
cooperation and for participation and accountability.
But there is tension between globalization and democratic national
policymaking, said the UNDP, noting that international rules can constrain
some national policies, including those that today's developed countries
used in the past.
"The governance of multilateral institutions is important not
only for achieving their key functions, but also for expanding the
collective capabilities among nations. An appropriate structure ensures
the legitimacy and the quality of the work of such institutions."
The governance of international trade is dominated by rules - the
General Agreement on Tariffs and Trade and its successor, the World
Trade Organization. They have favoured trade expansion in a context
of generalized trade liberalization in developing countries as a result
of structural adjustment in the 1980s and 1990s.
"However, the rules affect national space to define public policies.
In particular, they limit the use of trade policy to support sectoral
or industrial development (policies used in the past by today's developed
countries to promote their industries)."
In addition, some rules can restrict the use of social policy, such
as India's National Food Security Act, said the report. It noted that
India's National Food Security Act of 2013 grants the "right
to food" in the biggest ever food safety net programme, distributing
highly subsidized food grain (61 million tonnes) to 67 percent of
The scale of buying grain from poor farmers for sale to poorer consumers
put India at risk of violating its World Trade Organization obligations
in agriculture. World Trade Organization members are subject to trade
sanctions if they breach a ceiling on their agricultural subsidies.
But the method of calculating the ceiling is fixed on the basis of
1986-1988 prices and in national currency, an unusually low baseline.
"This clear asymmetry in international rules reduces national
space for development policy," said the report.
India, as other developing countries, did not have large agricultural
subsidies when the rules were originally agreed.
The (Indian Food Security) Act - which aims to stave off hunger for
840 million people and which can play a pivotal role in the UN agenda
to end hunger everywhere - is being challenged because it raises India's
direct food subsidy bill from roughly $15 billion a year to $21 billion.
In comparison, the United States increased its agricultural domestic
support from $60 billion in 1995 to $140 billion in 2013.
"The matter has not been resolved, except for a negotiated pause
in dispute actions against countries with existing programmes that
notify the World Trade Organization and promise to negotiate a permanent
The report also said that the World Trade Organization's Doha Development
Round offered some space for rebalancing the rules, this time towards
a development-oriented perspective.
But progress on the key issues of this round, under negotiation since
2001, has been limited. With the Doha Round stalled, international
trade rules have been dominated by regional and bilateral trade agreements,
where protecting investments and intellectual property rights have
"In practice, industrial countries (the main source of foreign
direct investment and patents) use such agreements to obtain benefits.
The payments of royalties and licences from developing to developed
countries (particularly to the United States) have grown immensely
According to the UNDP, international investment agreements and bilateral
investment treaties might restrict governments' ability to define
national policies and standards.
These agreements often define expropriation as an action that reduces
investors' expected profits - a very broad definition that is ripe
for litigation. An international entity, in most cases the International
Centre for Settlement of Investment Disputes, resolves disputes related
to these instruments.
Proper regulation of foreign corporations might become difficult,
said the UNDP. As an example, it noted that in October 2012 an arbitration
tribunal of the International Centre for Settlement of Investment
Disputes ruled against Ecuador in a case brought by Occidental Petroleum
Corporation and Occidental Exploration and Production Company under
the United States - Ecuador Bilateral Investment Treaty.
It imposed a penalty on Ecuador of $1.8 billion plus compound interest
and litigation costs, bringing the award to $2.3 billion.
What legal observers found striking about this judgement is that the
tribunal recognized that Ecuador cancelled its contract because the
company violated a key clause (selling 40 percent of the concession
to another company without permission) but found that Ecuador violated
the obligation of "fair and equitable treatment" under the
United States - Ecuador Bilateral Investment Treaty, said the UNDP.
Most countries have signed some of the 2,958 bilateral investment
treaties recorded by the United Nations Conference on Trade and Development.
Among other findings in the report are that the resources channelled
through the main global institutions are modest.
In 2014 official development assistance was a mere 0.17 percent of
world GDP. UN spending in 2014 was 0.06 percent of world GDP. Lending
from the main international financial institutions has also been limited:
IMF disbursements were 0.04 percent of world GDP, and multilateral
development bank disbursements were 0.09 percent of world GDP.
"If directed to one goal, these resources make a difference.
But they are often directed to multiple fronts, some associated with
deprivations and some with global public goods (with increasing demand,
as for peace and security)."
The funding of global institutions appears inadequate for achieving
international targets. The Sustainable Development Goals, far broader
than the Millennium Development Goals, require investments in developing
countries of $3.3-4.5 trillion over the next 15 years.
Subtracting current annual investments of $1.4 trillion, the resource
gap is around $2.5 trillion (around 3 percent of world GDP in current
prices), said the report.