Intellectual Property Rights in Bilateral Investment Treaties and Access to Medicines: The Case of Latin America

The link between intellectual property protection and access to medicines has been studied from different perspectives. After signing the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, most developing and least developed countries agreed to protect pharmaceutical products under the patent system. Beyond the criticisms of this system as an incentive mechanism to encourage private investment in research and development, it is widely acknowledged that a balance must exist between its benefits and costs. The patent system interaction with public health policies is twofold: providing incentives to develop new medicines, on the one hand, and increasing the prices of medicines, on the other. The TRIPS Agreement, the Doha Declaration and the subsequent Decision on Implementation of Paragraph 6 of the Doha Declaration all recognized this important trade-off. Different effects prevail in each interest group or country and negotiations of international intellectual property right (IPR) standards reflect this conflict. Nevertheless, the post-TRIPS scenario is full of new bilateral and regional agreements. The old bilateral investment treaties (BITS) are evolving towards new forms of all-encompassing arrangements that include intellectual property and liberalization of trade and services, apart from the classical rules for investment protection. This trend imposes a new landscape in IPR protection: one in which the above-described balance might be inclining towards one side. This article analyzes some legal, political and economic features of this new generation of BITS in Latin America.