Reasserting Control through Withdrawal from Investment Agreements: What Role for the Law of Treaties?

A TRIPS-COVID Waiver and Overlapping Commitments to Protect Intellectual Property Rights Under International IP and Investment Agreements

“…268 If the home State can modify, suspend and even terminate the investment treaty, with the consequent modification, suspension or termination of the protections afforded to investors, a fortiori the home State can agree to the temporary non-performance of one of the obligations in that same treaty. 269 Therefore, when the home State consents to the non-performance of an obligation owed to it under a treaty, the relevant obligation is, in the ILC terms, 270 temporarily displaced (in full or in part, depending on the scope of the consent) and the State bound by it is under no obligation to perform it while the consent lasts. The implication, for the investor, is that whatever entitlements it might derive from the obligation in question will also be temporarily displaced.…”