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JSPES, Vol. 27, No. 4 (Winter 2002 )
pp. 445-494

The 1998-2001 Legal Struggle between the South African Government and the International Pharmaceutical Industry:a Game-Theoretic Analysis

Susan Cleary, Don Ross

The authors analyze the 1998-2001 legal and public relations dispute between the South African Government and the Pharmaceutical Manufacturers Association over the former's attempt to over-ride patent rights. On final settlement the Government claimed 'victory', without demurral from the other side, despite conceding the very issue that had prompted legal conflict in the first place. The authors conclude that the success of HIV/AIDS activists in publicly spinning the original court case as a battle over access to HIV/AIDS therapies complicated the game for both the Government and the PMA. The resulting threat of rising public demonisation increased the public relations cost to the PMA of pursuing its suit. At the same time, the value to the Government of securing the right to compulsory licensing diminished, given its desire not to become responsible for antiretroviral provision under any legal regime. For public relations reasons, however, the Government could not directly reveal this preference. Maintaining this as private information also gave it a strategic advantage over PMA, one which it used to extract the PMA's non-demurral on the credibility of its public claim to 'victory'.