Convergence, Divergence, and Regulatory Tension - An Asian Perspective

Regulatory issues relating to public health, including regulation of access to medicines and tobacco control have increasingly been the source of tension in recent trade and investment negotiations, treaties and disputes. The ongoing Trans-Pacific Partnership negotiations, which include a number of developing Asian states, are an example that brings some of these issues to the fore and show a divergence of negotiating views. The intersection between public health regulation and trade and investment treaties has given some Asian states significant pause for thought; it has further led the international system to a critical need to confront the overlap of legal obligations vis-à-vis public health, regulatory objectives and implications for stakeholder interests. This intersection and resulting tension have led the WTO, WHO and WIPO to work together in an unprecedented manner to address some of the issues at the global level. The law evolving around these issues is demonstrating a deep divergence, in the manner that related disputes are being handled, and in terms of regulatory as well as negotiating stances. As an example, the debate on access to medicines demonstrates a divergence of approaches and proposed global solutions, as numerous proposals for reform of the existing construct (comprising patents and their “progeny” in the form of related commercial rights) are canvassed. Meanwhile, some countries such as India have begun to move ahead to embrace solutions such as compulsory licensing. This paper examines the reasons for legal and policy divergences in public health issues in the context of treaty obligations, with examples from Asia, and attempts a prognosis on convergence in regulation. It is suggested that a convergence of purpose(s) is needed, for a convergence of solutions to be found. Until then, the current divergences will continue to feed regulatory tension