We don’t want TRIPS to be a part of the problem, but to be a part of the solution, says Ambassador Mohan Kumar

Financial Express, November 19, 2021

Extensive discussions on the proposal have taken place in the TRIPS Council. Many countries are supporting the proposal, while few key countries, including the European Communities, are still not convinced.

Discussing on the topic “Equitable Access to COVID-19 Healthcare” recently, Ambassador Mohan Kumar, made it clear that “we don’t want the Agreement on Trade Related Intellectual Property Rights (TRIPS) to be part of the problem, but to be part of the solution”. The perspective included the TRIPS waiver submission by India and South Africa in the World Trade Organization (WTO) and the upcoming Ministerial Conference.

In October 2020, India and South Africa had submitted a proposal for a waiver from certain provisions of the TRIPS Agreement for the prevention, containment and treatment of COVID-19.

Extensive discussions on the proposal have taken place in the TRIPS Council. Many countries are supporting the proposal, while few key countries, including the European Communities, are still not convinced. The US has shown its positive intent of support, though the scope and extent of such support is still not clear. The matter would be one of the most contentious one during the WTO Ministerial Conference later this month.

Ambassador Kumar was speaking during the flagship Biennial Conference on Competition, Regulation and Development organised by the CUTS International and CUTS Institute for Regulation and Competition (CIRC) in partnership with the Organization for Economic Co-operation and Development (OECD), European University Institute (EUI) and Overseas Development Institute (ODI). This two-day Biennial event, held between November 16 and November 17, was seventh in the series, and theme this time is building blocks for an inclusive and resilient economy.

According to Ambassador Kumar, who was one of the Indian negotiators in the Uruguay Round, four most important areas in relation to addressing global vaccine inequity are technological and know-how transfers, incorporating TRIPs flexibilities, conducive competition policies, and adequate funding and manufacturing capacity.

Ellen ‘t Hoen, Lawyer and Public Health Advocate, Medicine Law and Policy, while criticising hoarding of vaccine by high income countries, highlighted the limitation of TRIPs waiver as it cannot force transfer of technology. Transfer of know how would be necessary due to complex nature of vaccines. According to her, since most vaccines were developed using public funds, including advance contracts, governments should have put conditionality of transfer of know-how on the developers in order to scale-up manufacturing of vaccines.

Alexey Ivanov, Director, BRICS Competition Law and Policy Centre, opined that in order to facilitate technology transfer, we need a holistic, cohesive and balanced ecosystem of regulations. “At multilateral level adding a dedicated competition forum would bring in the right balance in ecosystem, which is largely led by the trilateral initiatives of the World Health Organization (WHO), WTO and World Intellectual Property Organization (WIPO),” added Ivanov.

In this regard, Ivanov also highlighted with the help of a current example from Russia the failure of the compulsory license tool with respect to a COVID-19 drug, where pandemic of this scale was being contested as a valid ground for such a grant. He added, “Covid vaccines should be treated as public goods”.

Speaking on the importance of competition law and policy in enhancing access to drugs, Hardin Ratshisusu, Deputy Commissioner, Competition Commission of South Africa, highlighted how competition authorities can help check abuse of Intellectual Property Rights (IPRs) by firms. Since the issues involved are global in nature, “cooperation among competition authorities is important to deal with IP-induced global monopolies in the pharmaceutical sector,” he added.

Providing an optimistic scenario, Bernard Hoekman, Director, European University Institute, said that there is enough production vaccine in the world and the problem largely lies in logistics and distribution management. International institutions such as World Bank, WHO, and other crisis-based organisations with resource personnel on the ground can play a crucial role in this regard. He also emphasised the importance of trade facilitation in addressing the vaccine inequity.

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