Negotiating Tactics, Tradeoffs, and Intellectual Property Politics: Chile and Malaysia in the Trans-Pacific Partnership

Decisions on tradeoffs in trade negotiations, or decisions made to procure a win-set for a country, do not occur in a silo – rather they occur in a complex interacting web of political-economic factors. This is especially applicable to pharmaceutical intellectual property (IP), where countries often have to consider tradeoffs between public health, commercial interests, public security, and market access, and where there is notable historical controversy. When a 12-year period of exclusivity for biologics, basically a long monopoly period for a new (expensive) class of medications engineered from living organisms, was proposed by the United States in the Trans-Pacific Partnership (TPP), negotiating parties of differing income levels were reluctant and/or opposed to incorporating these IP provisions. Where there is a deadlock, the opposing side may offer market access or other benefits to force a concession. A number of political-economic factors may play into this, including previous relationships between the two nations, the formation of a coalition, and power dynamics. And while scholarly literature has described the diminishing hegemony of the United States, examining this power dynamic in the context of the TPP and associated negotiation tactics, and in particular as regards two upper middle-income countries (UMICs), Chile, and Malaysia, fills a gap in literature on trade-related IP. A couple of political-economic factors make this case study significant; including that UMICs, despite their higher GNI per capita, cannot often sustainably afford the price tags attached to biologic drugs, and that they may have established more diversified economic dependence, reducing the need for concessions in some areas solely for market access to the United States or membership of the TPP. Drawing upon the testimonials of trade negotiators, government officials, and civil society, this thesis analyses tactics utilised by UMIC negotiators when faced with biologics tradeoffs, and formulates lessons for other developing countries.