Pharmaceutical Patent as Investment in Bangladesh’s BITs
International investment law is designed to promote and protect the activities of private foreign investors. BITs are at the heart of investment law and it is estimated that close to 3000 BITs exist worldwide. The perception for BITs is that it boost investor’s confidence that results in greater inflows of FDI. Developing countries entered into BITs primarily to attract foreign investors and thereby to increase FDI inflow. Like any other developing country, the government of Bangladesh is keen to attract foreign investors and it is quite evident from the trend the number of BITs, the country entered into. At the beginning of the 1980s the total number of BITs was only one, and till now it has reached at twenty-nine.
The Prime Minister’s message on the website of Board of Investment as follows: ‘..we want to turn Bangladesh into a middle-income country by 2020 for which foreign investment is a significant component,’ implies that the government is trying to create a more open and completive climate for the foreign investment. To attract foreign investments the government of Bangladesh is unintentionally shrinking its regulatory powers to protect public health. The ongoing trend may also have a severe impact on the invocation Doha Flexibilities as a member of LDCs. The present chapter would look at definition part of BITs of Bangladesh and it examines whether it covers pharmaceutical patent as part of the definition of investment.
Bangladesh has signed 29 BITs in total, out of which 4 are not yet in force. All the BITs of the county excluding the Bangladesh-German BIT expressly recognize intellectual property rights held by the investor as a form of investment. These BITs include pharmaceutical patent under the definition of investment either as part of IPR rights or as part of patent right. For instance, the Agreement between Bangladesh and UK states that: ‘investment" means every kind of asset and in particular, though not exclusively, includes: …intellectual property rights and goodwill’. On the contrary, some other BITs contain illustrative list of IPRs, for example the Agreement between Bangladesh and Turkey contains that: ‘Investment would include… industrial and intellectual property rights including patents, trademarks, industrial designs, copyrights, technical process, goodwill and know-how’. There are few instances where IPRs as part of investment have been subjected to the relevant laws of the respective contracting parties. Carlos M. Correa argued that intellectual property rights fall under the definition of investment of BITs only if it is recognized as protected under the national law of both the parties. Perhaps it is no more a valid argument because the IIA jurisprudence excluded the possibility of referring national law to define investment. The situation can be different where the IPRs clause itself under the definition part condition to the consideration of the national law. However the broad based definition of investment encompass pharmaceutical patent unless it is explicitly excluded from BITs. No BIT of the country is qualified to exclude pharmaceutical patent beyond the definition of investment.