patents and also by far , the most frequent user of compulsory licenses . Yet it threatens other countries with sanctions .
According to one report , only 12 compulsory licences were granted globally between 1995 and 2011 .
The US Trade Representative Office ( USTR ) downgraded Thailand from “ watch list ” to “ priority watch list ” in the 301 Report . USA ’ s Special 301 Report :
The USTR ’ s Special 301 Report - a Congressionallymandated annual report that has been issued every year beginning in 1989 identifies trade barriers to US companies and products in foreign shores due to the host country ’ s intellectual property laws , including trademarks , patents , copyright , trade secrets , etc . The US implement unilateral trade sanctions based on this list .
India was one of the first countries to be included in the Priority Foreign country list in 1991 . In April 1992 , the United States suspended duty-free privileges based on this entry . This suspension applied principally to pharmaceuticals , chemicals and related products . Since 27 years India continues to be in the ‘ Priority Watch List ’. India issued its first ever compulsory license in 2012 but never dared to do so again .
Another country is Indonesia where it was put on the priority watch list in the 301 report from 2013 to 2017 due to its compulsory license for Government public noncommercial use in 2012 .
The mere reference in the Special 301 Report is important - it is a form of sanction and an inappropriate warning against countries exercising established rights to promote public health . Every year as the deadline for the USTR ’ s Special 301 review approached countries would rush through some amendments to their intellectual property law , perhaps put a few more pirates in jail , 6 increase penalties or to take some other action , all in an effort to demonstrate their commitment to respecting their US intellectual property .
Treaties as Imperialist Weapons :
IP is not the only basis of ISDS challenges to health policies . Investment provisions have also been used to challenge Poland ’ s attempts to prevent the privatization of its public health insurance company and the ability of Canada to regulate chemicals that can cause health problems . It is evident that the rights given to investors in BITs and FTAs [ Free Trade Agreements ] can significantly restrict a government ’ s ability to regulate how companies operate within its national borders .
In 2003 , Eureko initiated UNCITRAL arbitral proceedings against Poland under the Poland- Netherlands bilateral investment treaty . Eureko alleged that Poland had persistently and wrongly postponed holding the IPO on the basis that the market conditions were not appropriate . Eureko claim ed US $ 12.6 billion in damages . After eight long years of struggle , in 2009 , Poland privatised the Insurance company to settle the dispute .
In 2011 India ’ s Natco successfully filed a compulsory licence application over Bayer ’ s liver and kidney cancer drug , Nexavar which costs Rs 2.84 lakh per m onth ; Natco sold it at Rs . 8,800 per month . Under the compulsory license , Natco must pay Bayer a 6 % sales royalty . The Nexavar licence , which was the world ’ s first market-initiated compulsory licence , was met with severe backlash by the United States that over the years just two applications under section 84 ( m arket-initiated compulsory licences ) were filed . The first application pertained to Bristol- Myers Squibb ’ s , Dastanib , a drug for ( cancer ) leukaemia priced at $ 108 per day filed by Indian generic drug manufacturer , BDR Pharma . The second was initiated by Lee Pharma Ltd . over AstraZeneca ’ s patented diabetes drug , Saxagliptin . Both were rejected by the Indian Patent Office .
It was alleged that the Indian governm ent had given private assurances to the USTR that India would adopt a stringent approach when granting compulsory licences over patented drugs . Voices against ISDS :
From the developed countries - Australian government to South Korean Judges open objections were raised against ISDS that they are threats to sovereignty .
EU stepped back against US push for ISDS between them .
Canada and EUs push for ISDS inclusion in WTO were rejected by India , Brazil , Japan and Argentina .
South Africa and Indonesia are withdrawing from existing BITs in favour of domestic investor protection laws .
Even UN experts stated that there was “ a legitimate concern that both bilateral and multilateral investment treaties might aggravate the problem of extreme poverty , jeopardize fair and efficient foreign debt renegotiation , and affect the rights of indigenous peoples , minorities , persons with disabilities , older persons , and other persons leaving in vulnerable situations .” They further stated that “ It is States , particularly developing States , and their populations that need protection from predatory investors , speculators and transnational corporations , who do not hesitate to engage in frivolous and vexatious litigation , which are extremely expensive and have resulted in awards in the billions of dollars and millions in legal costs .
But as expected they didn ’ t call for its abolition . They suggested reform measures for BIT ’ s and FTAs .
Class Struggle