Compulsory licensing after Natco v Bayer: India’s evolving investment-treaty strategy (2012–2025)

Purpose This paper aims to examine how India’s approach to investment treaty drafting evolved after its first compulsory licensing dispute, Natco v Bayer (2012), to safeguard its regulatory autonomy in public health. It analyses whether the issuance of compulsory licenses (CLs), a Trade Related Aspects of Intellectual Property Rights (TRIPS) recognized flexibility, has been explicitly excluded from expropriation and investor–state dispute settlement (ISDS) clauses in India’s post-2012 International Investment Agreements (IIAs). Design/methodology/approach Using doctrinal and comparative treaty analysis, the study reviews all the IIAs concluded by India between 2012 and 2025 which are in-force, including the Model BIT 2016. Each treaty is examined for how intellectual property rights are defined as “investments”, the presence of explicit exclusions or carve-outs for CLs and the extent to which TRIPS-related public-health flexibilities (Articles 31 and 31bis) are preserved. Findings India’s treaty practice demonstrates a clear policy shift from asset-based to enterprise-based definitions of investment, accompanied by explicit exclusions of compulsory licensing from expropriation or the entire treaty scope in its newer BITs. Model BIT (2016) based treaties, such as those with Brazil, Belarus, UAE and Uzbekistan, provide the strongest protection for public-health measures, while comprehensive trade agreements exhibit limited or no express carve-outs. Although these developments reduce exposure to ISDS claims, the TRIPS-consistency condition leaves residual vulnerability if a CL’s compliance is contested. Research limitations/implications The paper synthesizes India’s post-2012 treaty practice to highlight its evolving balance between investor protection and public-health regulation. It offers insights into how developing countries can maintain policy space for access to medicines within international investment frameworks. Originality/value This paper examines India’s investment treaty practice primarily from a host-state perspective, as the regulatory tensions surrounding compulsory licensing arise most directly in contexts of inward investment and investor – state challenges. While India is increasingly also a capital-exporting state, an analysis of how these treaty design choices operate when India appears as a home state falls outside the scope of the present inquiry.