Filling “institutional voids”? Pharmaceutical multinationals and intellectual property regimes in rising powers

By Rory Horner, University of Manchester

Image by jk1991, FreeDigitalPhotos.net

In a recent special issue of Critical Perspectives on International Business Rory Horner observes how established multinational pharmaceutical firms are seeking, with different degrees of success, to alter the intellectual property institutional environment in rising power economies. The contrasting cases of India and South Africa highlight that MNEs’ attempts to fill so-called “institutional voids” may not always fit with societal best interests.

Rising power economies are potentially major growth opportunities for multinational companies. In the pharmaceutical industry, the “pharmerging” markets include the BRIC (Brazil, Russia, China and India) countries as well as Mexico, Turkey and South Korea, are a major focus for expansion.

Established multinationals counter a different institutional environment in emerging economies. Notably, they can encounter different systems of pharmaceutical patent protection – with either shorter duration and/or narrower scope of patentability in the global South.

The rising power economies are currently a key focus of contestation around the setting of IP rules. The dramatic growth of the BRIC countries could potentially challenge the trade rules around patents, including those in pharmaceuticals, which have been mostly driven by firms and countries from the Global North.

Continued business and diplomatic pressure from the Global North has and is being placed to secure and maintain extensive and long patent protection, with rising powers subject to particular attention. This was true in the formation of the World Trade Organisation’s Trade-Related Aspects of Intellectual Property Rights (TRIPs) Agreement, as well as recently with intense debate around proposed recent changes in India, Brazil and South Africa.

The contrasting cases of India and South Africa are explored in this new article. Although both involve MNEs seeking to influence pharmaceutical patent law, South Africa has been quite prolific in granting patents, whereas India has been less so and has long been a thorn in the side of multinationals as a result.

India – MNEs’ struggle for institutional change
India has also been at the centre of contestation around pharmaceutical patent laws. Benefiting from local technological capabilities and restrictions on MNEs, product patents were removed in 1970 and domestically-owned pharmaceutical companies grew rapidly. With the onset of economic reforms in 1991, India has since risen to become the supplier of the third largest volume of pharmaceutical products in the world. In response, multinationals consistently sought and succeeded in securing patent law change in India, and India was even seen as a key motivation for the broader US efforts in relation to patents in the trade negotiations leading to the formation of the WTO and the Trade-Related Aspects of Intellectual Property Rights (TRIPs) Agreement.

Even since TRIPs was agreed to in the late 1980s, multinationals have continued to seek to influence India’s pharmaceutical patent laws. India has constantly featured in the United States Trade Representative’s annual Special 301 Report, introduced in 1989 to identify trade barriers for US companies due to IP laws. India has never dipped below “Priority Watch List” level on the Special 301 Report in its 27 editions to 2015. This pressure continued after India issued its first compulsory license under TRIPs in March 2012 to Natco Pharma to produce Nexavar.

South Africa – MNEs’ efforts to maintain broad patentability
South Africa is a contrasting case to India, with a much wider degree of patentability. With patent legislation in place as early as 1916 and the current statute since 1978, a later Intellectual Property Laws Amendment Act was passed in 1997 (subsequently amended in 2002 and 2005) to make South Africa TRIPs-compliant. MNEs have engaged in significant efforts to maintain the relatively broad scope of patentability, notably in two quite recent controversies.

South Africa’s pharmaceutical patent laws initially came to global attention in the late 1990s with a high-profile court case over proposed reforms to the Medicines and Related Control Substances Act to allow for parallel importing and compulsory licensing. The Pharmaceutical Manufacturers’ Association (PMA) of South Africa (mainly comprised of multinational or MNE subsidiaries as members) claimed the proposed reforms were in violation of WTO TRIPs obligations and unconstitutional. The MNE campaign however was visibly challenged by civil society organisations, most notably the Treatment Action Campaign (formed in December 1998). Although the lawsuit was eventually abandoned, South Africa has continued to be quite generous in granting of patents, more than international law requires and lacking many of the flexibilities present in the WTO’s TRIPs Agreement.

Recent proposed reforms to South Africa’s laws, in the form of a Draft National Policy on Intellectual Property put forward by the South African Department of Trade and Industry in 2013, have also attracted considerable controversy. Providing for higher standards for patentability, as well as possibilities of pre-grant opposition, the draft policy has attracted concern from international business groups and pharmaceutical MNEs. For example, the proposal was noted in the US Chamber of Commerce’s (GIPC) submission (7 February 2014, USTR– 2013-0040) to USTR’s 2014 Special 301 Report. A campaign coordinated by a firm Public Affairs Engagement, funded by PhRMA and the Pharmaceutical Association of South Africa (IPASA), to derail the reforms, attracted widespread condemnation. This campaign of MNEs attracted criticism from the Director General of the World Health Organisation, from Médicines Sans Frontières and from the South African Health Minister.

Beyond the “institutional void”
Rising powers cannot be accurately characterised as “institutional voids” which MNEs should fill for societal benefit, as some business strategy literature would suggest. Instead, in emerging economies, MNEs encounter a plethora of institutions that may be suited to serving local societal interests, such as the growth of emerging economy firms and serving health interests. Ultimately, rising powers may not be expected to inevitably converge towards or emulate those institutional environments practised in the Global North, but instead are likely to set their own agendas in accordance with their increasingly heterogeneous interests.

A new economic geography of trade and development?

By Rory Horner

In a new article published via Territory, Politics, Governance, Rory Horner reviews emerging evidence of the growth of South-South trade and argues for the need to move beyond win-win notions from development cooperation to highlight the commercial realities and very uneven geographies and development outcomes associated with this new economic landscape. 

The new geography of trade
More than a decade ago, UNCTAD declared that “a new geography of trade is emerging and reshaping the global economic landscape”. In 2012, a milestone was passed with the value of trade between developing countries (South-South trade) overtaking developing country exports to the global North.

Various indicators confirm this shifting geography as demonstrated in the below table. Claims such as those outlined in the UNDP’s The Rise of the South or the increasingly widespread notion of an “Africa Rising” are reflected in the growing share of global GDP generated in the global South. South-South trade is growing significantly, while the geography of demand is also changing – with import demand increasing rapidly within the global South. Notably, these trends are led by the rising power economies of Brazil, India, China and South Africa.

Summary indicators of the shifting geography of income and trade in the world economy:

	Then	2012
South % of global GDP	21.7 (1980)	35.8
Export as % of GDP for Southern countries	16.7 (1981)	29.5
South % of world exports	29.6 (1980)	44.7
South-South % of global trade	11.7 (1995)	25.5
North-North % of global trade	51.2 (1995)	33.9

Source: Horner (2015, 7)

South-South trade raises the exciting prospect of moving beyond the more unequal and hierarchical North-South trade relationship. Specifically, South-South trade has been heralded as “vital for development” (OECD, 2006) and such trade integration viewed as “key to rebalancing the global economy” (UNCTAD, 2011). Much of the excitement in relation to South-South trade draws on “win-win” ideas of horizontal, more equal interaction drawn from the arena of development cooperation. Given that North-South trade has been characterised by high levels of inequality and hierarchy, the implicit suggestion is that South-South may offer at least some better opportunities.

Many of these optimistic viewpoints are somewhat speculative, however. It is questionable whether and how the intended “win-win” notions of South-South development cooperation translate into the commercial realities of South-South trade. The now quite significant body of research on China, and to a lesser extent India, in Africa suggests that while trading relationships may overlap with some of the intended aims of South-South cooperation, the associated impacts are not necessarily win-win. New hierarchies can characterise these relationships, leading to some suggestions of forms of neo-colonialism.

An emerging agenda on South-South value chains and production networks
Research on global value chains (GVCs) and global production networks (GPNs) can move beyond some more macro-scale, geopolitical interpretations to take an actor-centric approach to understand the variegated, region and industry-specific development implications of trade. However, such research has, to date, largely had a North-South orientation, focussing on those firms and farms in the global South participating in chains and networks mostly governed by lead firms from the global North.

Emerging evidence on South-South value chains also highlights two competing possibilities. As summarised in the table below, nascent empirical evidence has charted the potential for easier access to South-South markets in comparison to those of the global North, but also the new competition and unevenness within the South.

Emerging evidence on South-South value chains and production networks:

	Pros: More accessible markets	Cons: Greater competition
Volume/price	Greater volumes	Lower prices, more competitors
Standards	Lower requirements	Lower requirements may be short-lived
Upgrading	Learning and functional upgrading opportunity	Uneven capabilities among firms to benefit
Dependency	Diversification of end-market risk	Potential new dependency

Source: Author’s construction

Governance of, and upgrading within, South-South value chains and production networks are two issues which deserve particular attention. In relation to private governance, new lead firms from the global South are playing increasingly prominent roles in coordinating trade. With firms from outside the global North comprising an increasing share of the world’s largest firms, it is necessary to understand the forms of governance these firms exert, including through private standards requirements. Public governance, a less focussed-on topic within GVC and GPN research, is also crucial to understand in terms of the varying capacity of state policymakers to shape South-South GVCs and GPNs. Upgrading opportunities deserves attention, including in relation to the possibilities arising from different end markets and the associated strategies required. With increasing heterogeneity within the South, the differential possibilities for upgrading, but also the possibilities for downgrading and negative outcomes from South-South trade warrant attention.

In June 2015, I organised an early career conference on this theme of “Global production networks and new contours of development” at the University of Manchester. We had 20 presentations from early career scholars moving beyond the North-South orientation of much research on GVCs and GPNs.

In two ongoing projects, I am now researching more deeply the nature of South-South production networks and their development implications, through an investigation of the economic, social and political relationships that constitute India’s “pharmacy to the developing world”. In South Africa, funded by a British Academy small research grant, I am exploring the various engagements of Indian firms and their local development implications. In East Africa (specifically, Uganda, Kenya and Tanzania and with the support of a Regional Studies Association early career grant), I am investigating the challenges for local pharmaceutical production and its viability vis-à-vis competition from Indian supply. The initial stages of these projects confirm comparatively lower entry barriers in such production networks, and find quite diverse implications for local stakeholders – with key differences, for example, between local industrial and consumer interests. Such outcomes fall in various positions along the spectrum between the two polar extremes of the discourse on South-South relations – as “win-win” development cooperation or neocolonialism.

Ultimately, new research can move beyond the win-win notions often drawn from an earlier era of South-South cooperation to unveil the commercial realities, varied outcomes and very uneven geographies of expanding South-South trade.

This blog post was originally published on Development@Manchester on 10 November 2015.