This article critically examines the proposed waiver of intellectual property (IP) rights for COVID-19 vaccines under the World Trade Organization Agreement's Trade-Related Aspects of Intellectual Property Rights (TRIPS), which was initiated in October 2020 when the pandemic raged and vaccines were unavailable. However, the landscape has now changed and the waiver may no longer be necessary. The Outcome Document, introduced in the TRIPS Council in May 2022, along with Ministerial Decision of June 2022 recognizes this by focusing on easing the requirements to use TRIPS-flexibilities to accomplish wider and cheaper access. In so doing, the Ministerial Decision reinforces the notion that TRIPS flexibilities can be a useful part of the policy toolkit, even in times of crisis. After providing an overview of the context and outlining justifications for the waiver proposal, the article analyses and identifies key implications and possible effects of the Ministerial Decision. The article concludes that while the Document may not be a perfect solution to the issue of access to vaccines, flexible application of TRIPS-flexibilities is a better resolution in the current environment, especially given the need for further innovation to combat COVID-19 and future pandemics.

This article assesses the arguments and challenges that are likely to arise should investors file an investor–State dispute settlement (ISDS) claim over measures taken in response to a waiver of obligations relating to intellectual property rights (IPRs) under the World Trade Organization's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement). After providing an overview of the proposed waiver of IPRs for COVID-19 vaccinations and treatments, it examines the jurisprudence relating to IP and investor–State arbitration and the grounds upon which investors would rely to make a case in ISDS and possible State defences. The analysis, which focuses on fair and equitable treatment and expropriation, concludes that it will be difficult for investors to succeed in claiming that measures taken in response to a TRIPS waiver of IPRs breach any substantive protection provision contained in an international investment agreement. States should, however, seek additional security by revisiting existing treaties and adding additional layers of safeguards to ensure legitimate and non-discriminatory measures taken in response to a TRIPS waiver do not lead to investor claims.

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