Mitigating the regulatory constraints imposed by intellectual property rules under free trade agreements

IP provisions in FTAs may have implications on a wide range of public policy areas. A vast academic literature has addressed the "flexibilities" available under the TRIPS Agreement and the negative impact of FTAs in relation to access to medicines. For example, the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard to Physical and Mental Health noted that the TRIPS Agreement and FTAs have had an adverse impact on prices and availability of medicines, making it difficult for countries to comply with their obligations to respect, protect and fully implement the right to health. He recommended developing countries and LDCs to review their laws and policies and amend them to make full use of the flexibilities available to them. This paper explores the extent to which this recommendation to use "to the fullest extent possible, remaining public health related flexibilities available" may be effectively implemented in the context of FTAs. The basic question addressed in this paper is whether contracting parties to FTAs can mitigate their adverse effects through interpretation and implementing regulations.