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Trading Pharma Goods The WTO Legal Framework

Posted by on Tuesday, July 6, 2021 in En Banc, Responses, Volume 74.

Neeraj Rajan Sabitha & Petros C. Mavroidis | 74 Vand. L. Rev. En Banc 145 (2021) |

In their thoughtful piece, Thomas Bollyky and Aaron Kesselheim advance an argument aimed to solve the persistent shortages in generic drugs in the United States.1 We want to take one step back and provide a complementary argument regarding the consistency of this and similar policies with the rules of the World Trade Organization (“WTO”). We want to demonstrate why, wisely, the WTO regime has limited scope and does not prejudge the level of risk aversion that individual WTO members can endogenously define. The heterogeneity of its membership is in and of itself a good reason to adopt this attitude. This does not mean that WTO members cannot engage in trading of pharmaceutical (“pharma”) goods with other like-minded players without being obliged to open up trade in pharma goods on a membership-wide basis. We explain why, even though case law on discrimination (an amorphous term, which is the legalese for protectionism) leaves a lot to be desired, there are solid arguments supporting this view.

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Neeraj Rajan Sabitha

Petros C. Mavroidis