Pharmaceutical Monopolies under TRIPS-Plus

Is Competition Law the Solution?

By Ashley Dougherty
Ashley Dougherty graduated in December 2014 with a joint-degree (JD/MBA) from Albany Law School and Union Graduate College.  During law school, Ashley worked for General Electric, ACE Group, the Honorable Judge Kahn at the Northern District of New York, and has worked aboard in Tokyo for the international maritime firm TODA & Co. Prior to attending law school, Ashley graduated from the University of Florida with a degree in Political Science.
While at Albany Law, she was a competitor on the law school’s travel team for the Philip C. Jessup International Law Moot Court Competition, an editor for the International Law Studies Blog, and served as the president of the International Law Society.
Ashley is currently working at the NY State Assembly Minority Office as Associate Counsel on the Corporations, Energy, Transportation, and Economic Development committees.
This paper was prepared for Professor Halewood’s International Trade Law class

Developed countries pursue excessive intellectual property regulations when negotiating trade agreements. These so-called TRIPS-Plus provisions can create advantageous monopolistic forums for pharmaceutical companies that are unfair for developing countries.

One of the most recent examples of this is the U.S. and the Trans-Pacific Partnership (TPP).  There is a surplus of intellectual property provisions agreed upon in the TPP which promote unfair trade practices. These include data exclusivity provisions, prohibitions against parallel importation, decreased reasonableness of seizure of shipments which causes unreasonable delays, “evergreening,” and patent term extensions. Such provisions deter countries from accessing essential medicine, particularly HIV/AIDs treatments, which are crucial to many southern Asian countries.

Those provisions also decrease competition in the pharmaceutical industry by inhibiting countries with emerging pharmaceutical industries from entering the market. This directly hurts consumers because it causes prices to rise, delays the entry of generic brands into the industry, and hinders ease of access to essential medicines.

This paper looks at what can be done to solve these problems. Specifically, the paper looks to the plausibility of creating global antitrust laws, either internationally or within the trade agreement, to combat the unfair trade practices caused by the TRIPS-Plus provisions.
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To read the paper, open HERE.

Access to Food in Developing Nations

The Disparate Impact of Human Rights Laws, Free Trade and 'TRIPS'

By Nicole Romano
Nicole Romano is a graduate of Albany Law School, class of 2014. She received her undergraduate degree from Stony Brook University in Political Science with an emphasis in law government. While in law school, Nicole earned a concentration in Estate Planning. Her extra-circular activities included working as Senior Editor for International Law Studies, Pro-Bono work with the Elder Law and Tax Law Societies, and a semester in the Litigation Clinic.
She is currently working for a boutique law firm in the Greater NYC area specializing in wills and estates, asset protection and business succession planning. She is also an active member of the New York State Bar Association and currently holds a position on the Executive Committee for the Young Lawyers Section.
This paper was prepared for Prof. Halewood’s International Trade Law class.

There is undoubtedly a clear disparity between the increase in free trade, which is supposed to promote general welfare, and its actual effect of increasing poverty and hunger.  Not only is there a disparity within free trade theory itself, it can be argued that international trade law was also created to incorporate human rights law to prevent this exact epidemic from occurring.

This disparity of trade liberalization and human rights, specifically with increasing famine, can be attributed to the Agreement on Trade Related Aspects of Intellectual Property (TRIPS) and its role in patent rights on agriculture. Private industries in the US were concerned about foreign protection of patents and the weak IP policies costing them billions of dollars per year. It was the private industry leaders of developed countries being directed to devise a plan to protect IP rights against developing nations. This resulted in developing nations working under a set of rules geared to promoting the needs of the former.

Private industry has been a major player in creating the resulting disparity between human rights law and trade law. Developing countries have been at the mercy of transnational corporations (TNC) that control food access in these areas. While these corporations control the majority of global trade, they have no obligations under international law to ensure the well being of citizens because international laws are typically only binding on State actors. This means that despite TNC’s heavy social and economic impact on developing nations, private corporations are not obligated to ensure that citizens are provided with an adequate standard of living or access to food.
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To read the paper, open HERE.