'The COVID-19 TRIPS Waiver and the WTO Ministerial Decision' by Peter K Yu in Jens Schovsbo (ed) IPR in times of crisis: Lessons Learned from the Covid-19 Pandemic (Edward Elgar, 2023) comments
In October 2020, India and South Africa submitted an unprecedented proposal to the WTO, calling for the partial suspension of the TRIPS Agreement to facilitate the ‘prevention, containment or treatment of COVID-19’. Although this proposal immediately received considerable support from other WTO members, civil society organizations and individual experts, it faced strong opposition from some developed countries – most notably the European Union, the United Kingdom, Switzerland and, to some extent, also the United States.
By December 2021, it was quite clear that the COVID-19 TRIPS waiver proposal would not receive enough support to achieve consensus within the WTO membership. Around that time, the European Union, India, South Africa and the United States, with the support of the WTO, launched quadrilateral consultations to find a compromise solution. The ‘Quad proposal’ that was eventually developed through these high-level consultations became the blueprint from which WTO members developed a new ministerial decision at the Twelfth WTO Ministerial Conference in Geneva in June 2022. This decision allowed WTO members to manufacture COVID-19 vaccines – and, if subsequently approved, also other COVID-19 health products – without the authorization of the relevant patent holders.
This chapter traces the TRIPS waiver debate from the submission of the original proposal by India and South Africa in October 2020 to the final adoption of the Ministerial Decision on the TRIPS Agreement in June 2022. The chapter further evaluates the strengths and weaknesses of this newly adopted decision, comparing it with the earlier TRIPS waiver proposal. It concludes by offering suggestions for future actions that WTO members on both sides of the waiver debate could take to help combat the COVID-19 pandemic.
