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6 May, 24 tweets, 14 min read
In advance of our Vaccine Equity and International Economic Law event next week (register here: miami.zoom.us/webinar/regist…), I am compiling some resources focused specifically on the proposed #TRIPS waiver.

A thread with links. 1/x
Proposed text of the waiver, submitted to the TRIPS Council in October 2020, is here. 2/x

docs.wto.org/dol2fe/Pages/S…
As an example of opposition to the proposal, here’s a response from Norway back in October 2020. It heavily emphasizes the existing flexibilities in the TRIPS Agreement. 3/x

norway.no/en/missions/wt…
Regarding those flexibilities, here is an excellent piece by Faith Tigere & @Kholofelo_M pointing to the practical challenges in implementing them. 4/x

tradeexperettes.org/blog/articles/…
A useful post by @Dyebo also speaks to the gap between TRIPS’s legal flexibilities and the practical obstacles. 5/x

dalishabalala.wordpress.com/2021/02/23/can…
This thread by @VidigalGeraldo also underscores the practical challenges of compulsory licensing. 6/x
Aside from compulsory licensing, TRIPS Art. 73 creates an exception for security measures taken in times of “emergency in international relations." This is probably not the flexibility that waiver opponents have in mind, but it’s there. 7/x

wto.org/english/res_e/…
Professor Frederick Abbott has argued (correctly, in my view) that the Covid-19 pandemic meets the requirements of Article 73, and that states could invoke the exception in order to ensure access to vaccines and other technology. 8/x

papers.ssrn.com/sol3/papers.cf…
What I’m coming to understand is that the waiver is an option that’s between the problematic (compulsory licenses) and the dramatic (security). It’s enabled by Article IX of the WTO Agreement. 9/x

wto.org/english/res_e/…
There has been a flurry of writing about the waiver, both supportive and in opposition. For a strong statement in support, see this piece in @washingtonpost by @MadhaviSunder & @MMKavanagh. 10/x

washingtonpost.com/opinions/2021/…
Opponents argue that a waiver will do little good b/c capacity, not IP, is the obstacle. There is speculation that a waiver may “backfire.” A piece that nonetheless acknowledges the need to exert activist pressure on Big Pharma is here, by @rsilv_dc. 11/x

washingtonpost.com/outlook/2021/0…
An alternative argument posits that TRIPS protection is the sine qua non of innovation. There’s also an almost reactionary concern for the legitimacy of the @wto. See eg this @CatoTrade piece by Jim Bacchus, which gives the game away in the subhed. 12/x

cato.org/free-trade-bul…
.@AmbassadorTai @USTradeRep has shifted the terrain, announcing “support for waiving intellectual property protections for COVID-19 vaccines.” This is not full support for the India/South Africa proposal or for any precise text. But it’s a big step. 13/x

ustr.gov/about-us/polic…
I’m sure by now you’ve also seen the statement by @vonderleyen that the European commission is “ready to discuss” a waiver, as well as Angela Merkel’s statement registering opposition. 14/x

theguardian.com/world/2021/may…
It’s still not entirely clear what the US envisions from all of this. As far as what could come next, here’s a useful thread by @DmitryOpines. 15/x
Regardless of which route is taken, as @alanbeattie and @howserob suggest, this suggests a diplomatic shift inside the @wto, with the United States taking the opportunity to find coalitions and exercise leadership in the organization. 16/x

ielp.worldtradelaw.net/2021/05/tripin…
Here’s @alanbeattie in @FinancialTimes, noting that the immediate effect of US support for some kind of waiver is that it provides political cover to states seeking to exercise TRIPS flexibilities to their maximum extent. 17/x

ft.com/content/0930fe…
In the long run, talk of a waiver may end up with a more nuanced, modified compulsory licensing regime, as @Dyebo suggests. Here’s what that might look like. 18/x

dalishabalala.wordpress.com/2021/04/15/a-c…
As we can see, the @USTradeRep announcement from yesterday is just part of an iterative political process, and it’s not clear yet where we’ll end up. It’s also a relatively moderate solution all things considered, as @MMKavanagh points out. 19/x
None of this has stopped some pretty extreme reactions. @SoumayaKeynes in @TheEconomist described the US as “tear[ing] up the rulebook.” 20/x

(I don’t pay for the Economist & couldn’t read past the first 2 paragraphs. If anyone can offer me an IP waiver, I’ll take it.)
Moderna CEO Stéphane Bancel, meanwhile, told us all to go back to sleep, saying there would be no impact because of the general lack of capacity and know-how to make mRNA vaccines. That likely has something to do with the company’s share prices. 21/x

ft.com/content/607bf1…
There’s obviously a dissonance here—either the waiver won’t be effective, in which case why worry, or it will be effective, which would explain the position of industry lobbyists.@JosephEStiglitz & @WallachLori go there in @ProSyn today. 22/x

project-syndicate.org/onpoint/big-ph…
All of this noise only underscores the fact that we still don’t have a clear vision where all this is headed. What @wto obligations, if any, will be waived or modified, and how? And how will that be paired with technology transfer for the benefit of developing countries? 23/x
As @Dyebo points out, it’s incredibly frustrating that we have to ask these questions this late in the game. Still, here we are, predictably perhaps. And the question now is how we move forward. /END

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More from @jbentonheath

Ben Heath Profile picture
31 Mar
Today in Investment Law and Policy, we discussed "Investment Law in Developing Countries.” This is a problematic category, but the framing allows us to discuss important questions like law-makers vs. law-takers, and the effect of investment on local & indigenous communities. 1/
The idea of classifying the world as “developed” and “developing” is problematic and there’s no one way to do it. I started, very crudely, with this map from @worldbankdata, classifying countries by per capita GNI. Like I said, very crude, but keep this image in your mind. 2/
Now this is a map of investment treaty programs by “coherence,” put together by @w_alschner & Dmitriy Skougarevskiy. The darker the shade, the more coherent a country’s BITs, meaning, roughly speaking, the more each treaty resembles all of the others. 3/
Read 25 tweets
Ben Heath Profile picture
17 Mar
A continuation of my thread on investment and national security. I’m so enthusiastic about this topic I couldn’t fit it all in a single thread, it seems. …
I left off with the US-Peru FTA and its self-judging security footnote. That one is interesting, because 2 years later China concluded a PTA with Peru, and flipped the script, making a non-self-judging footnote. It’s interesting to speculate as to why. 26/
The 2015 India Model BIT is fascinating because it combines elements of all the models. There’s self-judging language, alongside a GATT-style list of security concerns, with some new additions (“critical infrastructure”). There’s even a GATS-style reporting obligation. But… 27/
Read 5 tweets
Ben Heath Profile picture
17 Mar
Today in investment law and policy, we’re talking about investment and national security (my favorite topic). The students read treaty text and Continental Casualty v Arg, and also watched a short recorded lecture by me. Other links below were not assigned to students. 1/
First, a little background from my recorded lecture. When folks say that today there is greater overlap between #NatSec & #ISDS, what do they mean? What kinds of measures are they talking about? How would they violate investment rules? 2/
Historically, the primary concern might have been economic sanctions. The US, in particular, has for years applied sanctions, asset freezes, and embargoes under the 1917 Trading with the Enemy Act and the 1977 Int’l Emergency Economic Powers Act (pictured). 3/
Read 26 tweets
Ben Heath Profile picture
15 Mar
Both good thoughts. Because I can’t get back to writing my draft article until I get this off my chest, a long thread about article length. These observations are triggered by Dave’s suggestion but not directed at these points, which I think are basically good. /1
2 hypotheses and 1 argument about Why L Rev Articles Are So Long:

1. It’s as much a function of who is reading/reviewing as it is about mere word limits/expectations.

2. Jr. scholars are likely going to bear the brunt of the Your Article Is Too Long complaint. /2
3. Sr. scholars complaining about article length (which is not what Dave is doing in the above RT) is my least favorite genre of academic tweet.

So please stop. (Again, not what Dave is doing, but some of you might already be doing it in the replies/RTs.) /3
Read 16 tweets
Ben Heath Profile picture
11 Jan 20
A thread on what’s going on in this odd (or, as @t_streinz put it, “quirky”) essay. Owing to my association with @nyuiilj, I’ve been a longtime consumer of US administrative law scholarship, which I found incredibly generative of ideas for the study of int’l institutions. /1
I think US admin scholarship tends to break down according to whether you believe: 1. that the administrative state is a practical necessity; and 2. that administrative governance suffers from something like a “deficit” of democratic legiitimacy. Like this:
/2
The top-left box I associate with first-wave critical legal studies, particularly Frug’s 1984 piece The Ideology of Bureaucracy. jstor.org/stable/pdf/134…. /3
Read 17 tweets
Ben Heath Profile picture
24 Oct 19
Really enjoyed this post from @AntheaERoberts @taylor__stjohn. There are many good pieces about the proposals for ISDS reforms & tradeoffs. What is unique about this piece is its emphasis on a political, deliberative forum as the emerging system's "center." Initial reactions 1/n.
I agree that it's important to think about the diplomatic and political fora that will compliment/steer whatever court or appellate process is eventually set up. I've learned a lot from @loyaladvisor about this dimension of the trading system. papers.ssrn.com/sol3/papers.cf… 2/n
There's lots of helpful literature on the role of political fora, both vis-a-vis courts and as governance mechanisms in their own right. The post's reference to the UNFCCC (likely deliberately) calls to mind Churchill & Ulfstein's foundational work: cambridge.org/core/journals/… 3/n
Read 10 tweets

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