Interpreting Doctrine of Legitimate Expectations in WTO Jurisprudence in its Application to Compulsory Licensing

Abstract

This paper attempts a critical examination of the doctrine of legitimate expectations in relation to non-violation complaints with a view to underlining its doctrinal significance for developing countries to justify the use of TRIPS flexibilities, such as compulsory licences, for public health considerations. Consequently, the author briefly traces some failed promises during the negotiation of TRIPS, and argues that the principle of good faith interpretation under World Trade Organisation law is more supportive of the contention that developing countries, which are generally the ones faced with complex public health issues require as a matter of fairness, greater flexibility to use compulsory licences in order to obtain affordable medicines to protect their legitimate public health expectations. This argument rests on the presumption that TRIPS allows for the substantive protection of legitimate expectations based on the balance of rights and obligations, and presently the agreement overly protects patents on essential medicines. Therefore, by implication the legitimate expectations of only the home governments of the pharmaceutical industry are protected at the expense of developing countries.