A Critical Appraisal of the COVID-19 TRIPS Waiver

Abstract

In October 2020, India and South Africa submitted an unprecedented proposal to the WTO, calling for a temporary waiver to combat the COVID-19 pandemic. This waiver aimed to suspend Sections 1, 4, 5 and 7 of Part II of the TRIPS Agreement and related enforcement obligations under Part III to facilitate the "prevention, containment or treatment of COVID-19." Lasting for a finite period to be determined by the General Council, the waiver covered not only patents, but also other forms of intellectual property rights.

This chapter offers a critical appraisal of the COVID-19 TRIPS waiver proposal, which was revised in May 2021 but was not adopted at the 12th WTO Ministerial Conference in Geneva in June 2022. It begins by identifying the arguments for and against the waiver, including those questioning its necessity, expediency and effectiveness. The chapter then explores the difficult decision on whether one should support the instrument's ultimate adoption. Breaking down the decision into two sub-questions – one on text-based negotiations and the other on the waiver's adoption – this analysis sheds light on why the WTO membership ended up embracing the Ministerial Decision on the TRIPS Agreement in lieu of the waiver.