A Regulatory Governance Perspective on IP and Access to Medicines – A Fresh Look Into the TRIPS Agreement

Abstract As concerns the relationship between the Global South and the developed countries, the TRIPS Agreement provides a robust protection of IP. This might result in a weaker protection of fundamental rights, such as health, in those countries that do not possess the necessary know-how and industrial capacity to manufacture essential medicines. The recent Decision adopted at the 12th WTO Ministerial Conference provides the opportunity to focus again on the topic and deal with the issue of the clash between IP and the national interests of the least developed countries. Instead of addressing the problem by looking at the well-known flexibilities/inflexibilities of the Agreement, this paper proposes a different methodological approach that builds on the flourishing literature on regulatory governance. To this end, a multi-dimensional regulatory approach is suggested that simultaneously exploits a matrix of normative, market-based and cooperative instruments. While we wait for a more structural normative reform, a similar perspective not only proves to be useful from a theoretical perspective, but could also contribute to shedding a new light on the TRIPS Agreement.