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The Southern African Development Community trade legal instruments compliance with certain criteria of GATT Article XXIV 2011 VOLUME 14 No 4

The growth of the service sector foreign direct investment (FDI) globally reflects an underlying need for appropriate regulation. As investors look into the African continent for investment opportunities, they need to find a regulated environment that can support their investments and related rights. This includes both intra-Africa FDI flows and investments that emanate out of the continent. The focus of this paper is on the Southern African Development Community (SADC). This paper will show that FDI will be critical for trade liberalization to be realised in the region. The findings of the paper point to the need for an institutional and regulatory framework in order to understand the consequences for investment flows. Where gaps are, appropriate cover needs to be found.

Despite the adoption of the World Trade Organization (WTO) Doha Declaration on the Agreement on Trade Related aspects of Intellectual Property Rights (TRIPS) and Public Health in 2001, which unequivocally affirmed WTO members’ rights to use compulsory licences and other TRIPS flexibilities to access essential medicines, thirteen years on, developing countries and least developed countries are still grappling with access to medicines issues and a high disease burden. Despite some well-researched and eloquent arguments to the contrary, it is a trite fact that patents remain an impediment to access to medicines by encouraging monopolistic prices. In the Southern African Development Community (SADC), a number of possible solutions to the access to medicines problem, such as local manufacturing of pharmaceuticals, using compulsory licences, using parallel importation and investing in research and innovation, have been raised. This paper looks at the possibility of solving the SADC access-to-medicines problem through rewarding innovation and investment into diseases of the poor, by applying the rewards theory of patents. After an initial exposition of theories of intellectual property in general, the paper specifically looks at the rewards theory and contextualizes it to the SADC situation, and comes to the conclusion that the theory may point to one of the viable solutions to the access-to-medicines problem in the region.