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Multilateralizing TRIPs‐Plus Agreements: Is the US Strategy a Failure?
Abstract
This article examines the current wave of US bilateral agreements with respect to their strategic and political value at the plurilateral level. The US government has explicitly recognized its objective of leveraging bilateral agreements in order to influence regional and multilateral negotiations. Although it may be too early to assess the full effectiveness of this US strategy, the article argues that there are clear signs that the exploitation of bilateral agreements will not independently achieve the goal of strengthening plurilateral patent norms. This finding is supported by an assessment of six potential roads from bilateralism to plurilateralism: chain reaction, pressure for inclusion, coalition building, emulation, legal interpretation and adherence. The assertion that bilateral trade deals have a huge impact on international patent law making, made both by proponents and critics of the Agreement on Trade-Related Aspects of Intellectual Property Rights-Plus, is unsubstantiated. The author concludes that the US Government Accountability Office and Congress are justified in questioning whether the negotiation of these bilateral agreements, at least in the realm of intellectual property law, is a wise investment of US Trade Representative's resources.
... Yet, Berger and Liu (2017) point to significant residual variation between the G-20 countries in terms of their approach to investment protection, which raises doubts about the prospects of a multilateral investment agreement. Likewise, Morin (2009) suggests that the lack of convergence between different intellectual property provisions in PTAs limits their potential impact on multilateral intellectual property agreements. ...
... Unlike other studies(Pauwelyn 2009;Morin 2009;Baldwin, Evenett and Low 2009), this chapter does not consider the following to be examples of multilateralization: the geographical expansion of existing PTAs, the creation of mega-regional PTAs, the duplication of certain provisions in a large number of PTAs, the establishment of customary international rules by repeated PTA practice, the citation of PTA clauses in multilateral tribunals and the prohibition of discrimination toward third parties via PTAs. ...
The Shifting Landscape of Global Trade Governance - edited by Manfred Elsig August 2019
... Depending on when countries began allowing drugs to be patented, 1 The immense literature on IP in bilateral trade agreements includes el Said (2007), Fink and Reichenmiller (2005), Krikorian and Szymkowiak (2007). Kuanpoth (2008), Mercurio (2006), Morin (2006Morin ( , 2009, Osgood and Feng (2017), Roffe and Spennemann (2006), Sell (2007Sell ( , 2010b, Seuba (2013), Shadlen (2005Shadlen ( , 2009, , Townsend et al (2018), von Braun (2012). TRIPS-Plus provisions will have different effects. ...
... Depending on when countries began allowing drugs to be patented, 1 The immense literature on IP in bilateral trade agreements includes el Said (2007), Fink and Reichenmiller (2005), Krikorian and Szymkowiak (2007). Kuanpoth (2008), Mercurio (2006), Morin (2006Morin ( , 2009, Osgood and Feng (2017), Roffe and Spennemann (2006), Sell (2007Sell ( , 2010b, Seuba (2013), Shadlen (2005Shadlen ( , 2009, , Townsend et al (2018), von Braun (2012). TRIPS-Plus provisions will have different effects. ...
This article analyzes the spread of intellectual property in trade agreements. We explain how the integration of intellectual property with international trade rules led to the globalization of pharmaceutical patenting, and then how additional provisions related to pharmaceutical products have been introduced by regional and bilateral trade agreements. We describe the additional ‘TRIPS-Plus’ rules contained in recent trade agreements, which go beyond the requirements of the World Trade Organization’s TRIPS Agreement, and explain the potential challenges that they may create for developing countries. We draw attention to the conceptual and methodological challenges of assessing the effects of patent provisions in trade agreements on prices and access to drugs, with particular emphasis on the importance of timing. Depending on when countries began allowing drugs to be patented, TRIPS-Plus provisions have different effects; and when pharmaceutical patenting has been in place for more countries for more time, the effects of TRIPS-Plus provisions will change again.
... 116 Consequently, stronger IP protection is considered more easily secured through bilateral or regional agreements than in the trade agreements within the WTO regime. 117 B. China's engagement with the international, regional, and bilateral IP agreements From the second half of the 20th century to the present, technologically advanced countries have made great efforts to standardise and expand IP rights across the globe. In this regard, China has often found itself having to enact laws and policies to comply with the changing standards mandated by various international, regional, and bilateral arrangements and agreements related to IP. ...
This article is an examination of the extent to which traditional medical knowledge in China can be protected by intellectual property laws. The analysis begins by providing a global picture with regard to the historic origin of intellectual property, exploring the reasons why China does not have indigenous counterparts to the western system of intellectual property rights protecting its traditional knowledge (including traditional medical knowledge) and stating the problems of transplanting western intellectual property standards in China. A discussion follows on how China, under foreign pressure, has made efforts to comply with the changing standards mandated by various international, regional, and bilateral arrangements related to intellectual property, with examples of the development of China's patent law. China's approach towards the protection of traditional medical knowledge in various international fora related to intellectual property is explored. Finally, there is a specific examination of the compatibilities between the western system of intellectual property rights and traditional medical knowledge in China, at the national and community levels. This article argues that the system of intellectual property rights does not easily fit with China's traditional medical knowledge because of China's unique cultural traits, distinctive historical context and wide ethnic, religious, and local community diversity.
... In addition to raising the floor level of protection, TRIPS has facilitated the negotiation of bilateral trade agreements with even more stringent IP rules (so-called 'TRIPS-Plus provisions', see Sell, 2010). However, the analysis suggests that the impact of TRIPS on IP rulemaking might be more ambivalent than earlier studies suggest (see also Morin, 2009). This is congruent with the longstanding argument in historical institutionalism that new institutions often have unanticipated consequences (Pierson, 2004). ...
Overlap among international institutions affects the strategic options that are available to actors. Yet no existing approach fully explains who benefits from regime complexity. While some point to materially powerful actors, others highlight weaker challengers of the status quo. Drawing on historical institutionalism, I conceptualize two dimensions of complexity. I argue that depending on the mode of interaction among the institutions in and the degree of institutional fragmentation of a governance area, opportunity structures for weaker challengers are more open or closed. Shifts on these dimensions over time thus lead to an opening or a closure of opportunity structures for challengers. I assess this argument by focusing on such shifts in two areas intellectual property regulation. The article contributes to the overall topic of the special issue and advances the literature on regime complexity by highlighting the divergent effects of different forms of institutional complexity on different classes of actors.
... This has applied not only to developing countries but also to Canada, where US policy has been successful. The USA has bilateral trade agreements with developing countries and with the former Soviet Republics that have included TRIPS-plus, which provides stricter provisions on the trade of generic drugs than WTO rules (Morin 2009). Together with IFPMA companies, the USA has put considerable pressure on the EU regarding the application of TRIPS on pharmaceutical products in the use of collateral drugs. ...
The chapter develops the argument that change in the primary institution of trade comes about through political bargaining by reference to the WTO’s intellectual property rights agreement (TRIPS) and interpretations regarding public health in developing countries. The argument of the chapter is threefold: First, trade is shaped by a complex, rule-laden order based on different primary institutions. Second, changes in the trade institution take place through bargaining processes in a trade regime. Third, political bargaining in a regime may create new norms. However, new norms do not replace prevailing norms. Rather, political processes can initiate the emergence of new norms alongside older norms, changing the institution but also producing tensions and contradictions.
... new York: palgrave macmillan, 2016, 85-102. cripción de tlc de carácter bilateral que generan inquietud en el ámbito de la salud pública, debido a la asimetría de poder económico existente entre un país desarrollado y un país en desarrollo, que permite a estados poderosos disponer de una vía alternativa para la creación de normas deseadas por ellos que no serían capaces de negociar con éxito a nivel multilateral 80 . ...
La colisión del derecho a la salud y del derecho de propiedad intelectual generada por las obligaciones que simultáneamente asumen los doce países de Suramérica en el marco del Pacto Internacional de Derechos Económicos, Sociales y Culturales de la ONU, por una parte, y en el Acuerdo sobre los ADPIC de la OMC, por la otra, ha supuesto un profundo impacto en el acceso a medicamentos esenciales para sus poblaciones. Este trabajo da cuenta de esta situación en los países de la región, al tiempo que lo sitúa en el contexto del debate sobre el comercio y los derechos humanos que se desata con especial fuerza desde principios de este siglo en el ámbito de la salud pública. Se destaca la necesidad de los países de Suramérica de fortalecer la cooperación intrarregional y el impulso a acciones de cooperación Sur-Sur en materia de acceso a medicamentos esenciales, teniendo en cuenta el predominio de patentes farmacéuticas detentadas por laboratorios privados del hemisferio norte. Los avances en esta dirección del Consejo Suramericano de Salud de Unasur, unidos a sus actuaciones como bloque regional ante la OMS, constituyen pasos promisorios que deben ser complementados con el desarrollo de capacidades de producción conjunta de medicamentos.
... This has fostered instability and fragmentation among the WTO members. 63 The "TRIPS plus" bilteral, regional and plurilateral agreements have also made it difficult for the affected populations to access essential medicines not only due to the lack of capacity and resources but more so because of strikes by the developed countries. This prompted the developing countries to strike back at the WTO, WIPO, and international regimes, giving rise to fears of a potential TRIPS-war. ...
Though the UN has envisaged that accessibility to essential medicines is a basic human right, a large number of people in developing countries are denied access to essential medicines. MNCs having the branded medicines have a tendency to choke the supply chain of cheaper generic medicines using the weapon of intellectual property rights. The TRIPS Agreement has set the minimum standard of protection of Intellectual Property but it has provisions of flexibilities such as compulsory licenses, parallel imports limitations to patent rights, etc., which can be used by member states to provide access to these essential medicines to their people. However, countries like US are using provisions which are over and above the flexibilities incorporated in TRIPS to deny access to essential medicines to people in developing countries. The accessibility of essential medicines to the population in developing countries as affected by these FTAs, ACTA, TPP and TTIP agreements have been examined in this paper and a case has been made out for the unity of the developing and least developed countries to deter US from choking the supply lines of the essential medicines to poor and needy. © 2017, National Institute of Science Communication and Information Resources (NISCAIR). All rights reserved.
... International trade and commerce is quickly shifting towards the TRIPS Plus regime of bilateralism where the United States of America and some other developed countries have been playing a pivotal role. 69 The intrinsic difficulties or disadvantages that are associated with multilateral agreements may be one of the reasons for many states preferring to opt for bilateral arrangements. 70 Such bilateral agreements can also be used to protect the GIs. ...
Handicrafts often demonstrate indigenous knowledge, traditional cultural expressions of artisans, small or big tribes and even nations at large. Crafting communities invest their labors and merits from generations to generations to create aesthetic and artistic handicrafts that both reflect their intellectual inputs and represent their community life styles enabling them the protection under the geographical indications (GIs) regime. Even though these handicrafts may be protected as GI under the provisions of international instruments and municipal laws (as enacted by around 160 countries), however, the international legal position on GIs is still a mess. Bangladesh and India, two friendly neighbours of South Asia, have many things in common for centuries. Few years back, India registered at least three products i.e. Jamdani, one variety of Mango and Nakshi Katha, which are undoubtedly of Bangladeshi origin and their historic Bangladeshi roots are well documented long before the idea of protection of these products through GIs emerged. Taking ‘Jamdani’ handicraft of Bangladesh as case study, this paper tends to explore the doctrinal, legal issues along with potentials and pitfalls of protecting handicrafts as GI under national and international legal frameworks. Highlighting the ongoing tensions with India on Jamdani and analyzing relevant legal issues, this article will propose some suggestions that Bangladeshi policy makers may consider to settle the dispute in a pacific manner. Such a discussion would ultimately enable the consumers to make an informed decision from buying misleading products and assist other countries facing similar problem relating to GI of same product available in different jurisdictions to resolve so.
... They advocated the conclusion of 'TRIPS-plus' agreements (Drezner 2007: 195-201) related to preferential trade agreements with key southern states or regions containing more stringent standards of intellectual property protection than those adopted within the TRIPS framework (Drahos 2001: 793). However, the success of this complementary strategy intended to narrow the scope of the Doha Declaration's area of application appears to be limited (Morin 2009), not least because many important developing countries did not accept such clauses (Abbott and Reichmann 2007: 962-967). ...
... They advocated the conclusion of 'TRIPS-plus' agreements (Drezner 2007: 195-201) related to preferential trade agreements with key southern states or regions containing more stringent standards of intellectual property protection than those adopted within the TRIPS framework (Drahos 2001: 793). However, the success of this complementary strategy intended to narrow the scope of the Doha Declaration's area of application appears to be limited (Morin 2009), not least because many important developing countries did not accept such clauses (Abbott and Reichmann 2007: 962-967). ...
The article examines the consequences of functional overlap among regulatory international institutions for governance within institutional complexes. Whereas the existing literature assumes that states tend to exploit forum-shopping opportunities to pursue their parochial interests, we show that multiple members of several overlapping institutions operate in a setting of ‘nested games’. They have a general interest in some form of institutional complementarity within the complex and therefore take the implications for overlapping institutions into account when determining their behavior within either of these institutions. On that basis, we show first that the multiple members are likely to induce complementary processes of institutional adaptation, even if their interests diverge with regard to the specific form of institutional rearrangement; second, that a balanced distribution of power among the advocates of different institutions may be expected to produce particularly sophisticated forms of institutional adaptation that do not simply separate the domains of overlapping institutions, but establish patterns of permanent co-governance; and third that state-induced processes of institutional adaptation gradually produce a spontaneously emerging division of labor among overlapping institutions that organizes their governance activities. These theoretical claims are probed by two case studies on institutional complexes that are characterized by sharp distributional conflicts among the multiple members: First, we demonstrate the emergence of a sophisticated division of labor in the institutional complex on international trade in agricultural GMOs. Second, we show that an equally sophisticated division of labor has emerged in the institutional complex on public health-related intellectual property rights.
... However, the IP provisions of these bilateral agreements recently became highly controversial as well. As a result, the bilateral wave is slowly eroding and the most recent bilateral agreements do not go as far as those concluded in the early 2000s (Morin, 2009). ...
The global intellectual property (IP) regime is in the midst of a paradigm shift in favor of greater access to protected work. Current explanations of this paradigm shift emphasize the agency of transnational advocacy networks, but ignore the role of academics. Scholars interested by global IP politics have failed to engage in reflexive thinking. Building on the results from a survey of 1,679 IP experts, this article argues that a community of academics successfully broke the policy monopoly of practitioners over IP expertise. They instilled some skepticism concerning the social and economic impacts of IP among their students as well as in the broader community of IP experts. They also provided expert knowledge that was widely amplified by NGOs and some intergovernmental organizations, acting as echo chambers to reach national decision makers. By making these claims, this article illustrates how epistemic communities actively collaborate with other transnational networks rather than competing with them, and how they can promote a paradigm change by generating rather than reducing uncertainty.
Purpose
The European Commission suggested in 2014 a differential approach to negotiating intellectual property rights (IPR) clauses in bilateral trade agreements, whereby least developed and poorer developing states were to be offered less burdensome obligations in the sphere of IPR. This made the policy of European Union (EU) with regard to IPR standards in third countries open to fragmentation, which could lead to increased transaction costs. The purpose of the study is to advance research on the following questions. How extensive has such fragmentation been in practice? Has such fragmentation followed any discernible pattern? and Have the impasse in the World Trade Organization (WTO) Appellate Body and the COVID-19 affected in any significant way the extent of such fragmentation?
Design/methodology/approach
The study includes an overview of the key developments in WTO negotiations with regard to the IPR after the Doha Ministerial Conference, and the explanation of the methodology of sampling, whereby eight clauses on IPR in three bilateral agreements are selected for analysis. The method of comparative analysis is used to establish the trends in EU bilateral trade agreements before and after COVID-19 with regard to IPR.
Findings
The study concludes that neither COVID-19 nor WTO Appellate Body stalemate changed dramatically the EU policy with regard to IPR standards in bilateral trade agreements. However, the fragmentation of the IPR clauses in trade agreements remains an issue, which may negatively affect the efficiency of the relevant commercial and investment activities.
Originality/value
Even though the IPR clauses of EU trade agreements with third states have been well researched, there is insufficient research of the effects of the COVID-19 and WTO Appellate Body stalemate on the treaty practice of the EU in the sphere of IPR on two aspects: treatment of developing countries and fragmentation of the international IPR standards. The study is, thus, offering a novel view of an important aspect of the EU external economic policy.
This chapter explores the challenges of integrating China’s traditional medical knowledge (TMK) within the predominantly Western framework of intellectual property (IP) rights. It examines the historical, cultural, and philosophical underpinnings of TMK and its inherent tension with IP systems that prioritise individual rights and commercialisation. By tracing the evolution of IP rights and their transplantation into China, this chapter reveals the cultural conflicts and administrative barriers that hinder the effective protection of TMK. It also evaluates China’s engagement with international IP agreements and the efforts to mandate disclosure requirements for genetic resources and TMK. A critical analysis highlights the mismatch between the Western IP system and TMK, which is rooted in collective ownership and cultural heritage. This chapter underscores how Confucian principles and the communal nature of TMK challenge the application of Western IP norms. Drawing on these insights, this chapter proposes a tiered approach to TMK protection, offering differentiated rights based on the diffusion and nature of the knowledge. This tailored model aims to safeguard TMK while promoting its responsible use and preserving its cultural significance. Ultimately, this chapter advocates for a culturally sensitive IP framework that bridges the gap between global IP standards and China’s unique TMK system. By addressing the complexities of TMK regulation, this chapter contributes to the broader discourse on reconciling traditional knowledge with contemporary legal frameworks, fostering innovation, and protecting cultural heritage.
This chapter examines China’s bilateral intellectual property engagement with a focus on the relation between Chinese FTAs and TRIPS. Categorising Chinese FTA provisions into four types according to their relations with TRIPS (passive defensive, active defensive, TRIPS-plus, and active promotion), this chapter concludes that the prevalence of TRIPS-defensive provisions in Chinese FTAs indicates China’s support for the multilateral IP system. Nonetheless, China has also been open to accepting TRIPS-plus FTA standards, including six-year data exclusivity for biologics, and more restrictive border measures. Active promotion provisions in Chinese FTAs, including rules on genetic resources and traditional knowledge protection, IP and public health, and the limits to ISP liability, shows its support for alternative standards on these issues. While China has not imposed its own IP standards onto its FTA partners, this does not mean that China has deliberately pursued the Confucian golden principle of non-imposition to guild its FAT processes.
While many issue areas of global governance have witnessed the proliferation of evermore overlapping institutions, the topologies underlying regime complexes differ from strongly centralised, to rather decentralised institutional structures. This paper contributes to a better understanding of this phenomenon in two ways. First, it proposes a conceptualisation of institutional topologies that takes a social network perspective. Second, building on economic good theories, the paper complements the existing arguments about policy area competition claiming that they overlooked the important role of the (non-)excludability of institutional benefits. This policy specific variable shapes an institutional complex’s propensity for competition which, in turn, spurs the (de)centralisation of institutional complexes. Two structured comparisons provide empirical support for this argument: comparing the propensities for competition and network structures underlying the institutional complexes of TA and intellectual property protection, I show that despite their many similarities, fundamental differences regarding the excludability of institutional benefits co-vary with fundamentally different institutional configurations. I complement these findings with qualitative case studies of institutionalisation processes in both policy fields rendering further empirical support for the theory’s underlying causal claim.
#العدد_العشرون_20
#مجلةريحان للنشر_العلمي
صدر اليوم العدد العشرون من مجلة ريحان للنشر، وهو عن شهر شباط/فبراير لعام 2022م.
وتقرؤون في هذه العدد مقالات علمية لباحثين وأعضاء هيئات تدريسية في جامعات متعدّدة من مختلف البلدان.
As the US is withdrawing its commitment to the liberal order, as emerging powers are increasingly assertive over trade, and as the noodle bowl of overlapping agreements is set to create regional competition, it is increasingly evident that trade policy has entered the arena of high politics. Yet, the research paradigms that dominate the discipline of IPE are primarily focused on explaining international trade policy outcomes by prioritizing domestic political factors. The flourishing literature on the design of preferential trade agreements has been particularly silent on the broader geo-economic context within which such agreements are made, despite the implicit acknowledgement of relative gains as a key driver of bilateralism. Drawing on insights from the literature on foreign policy analysis, we develop a novel conceptualization of geo-economics, adapted to the study of free trade agreements. In this introductory chapter, we present a research framework to systematically assess the extent to which geo-economic motives affect the negotiation and design of the EU’s free trade agreements in the Asia-Pacific.
The extent to which intellectual property rights (IPRs) are regulated varies strongly across preferential trade agreements (PTAs). What explains this variation? We argue that deep IPRs are mainly found in PTAs characterized by large differences in power and innovative capacity across member states. Computational text analysis on the IPR sections included in 467 PTAs signed between 1994 and 2020 allows us to test our expectation. The results show that, indeed, power asymmetries combined with asymmetries in innovative capacity drive deep IPR provisions. Our account adjusts the conventional wisdom that sees the developed North forcing IPRs on the developing South in a subtle but important way. In fact, we find that the internationalization of IPR regulation is not just driven by countries that form part of the traditional Global North.
La colisión del derecho a la salud y del derecho de propiedad intelectual generada por las obligaciones que simultáneamente asumen los doce países de Suramérica en el marco del Pacto Internacional de Derechos Económicos, Sociales y Culturales de la ONU, por una parte, y en el Acuerdo sobre los ADPIC de la OMC, por la otra, ha supuesto un profundo impacto en el acceso a medicamentos esenciales para sus poblaciones. Este trabajo da cuenta de esta situación en los países de la región, al tiem-po que lo sitúa en el contexto del debate sobre el comercio y los derechos humanos que se desata con especial fuerza desde principios de este siglo en el ámbito de la salud pública. Se destaca la necesidad de los países de Sur-américa de fortalecer la cooperación intrarregional y el impulso a acciones de cooperación Sur-Sur en materia de acceso a medicamentos esenciales, teniendo en cuenta el predominio de patentes farmacéuticas detentadas por laboratorios privados del hemisferio norte. Los avances en esta dirección del Consejo Suramericano de Salud de Unasur, unidos a sus actuaciones como bloque regional ante la OMS, constituyen pasos promisorios que deben ser complementados con el desarrollo de capacidades de producción conjunta de medicamentos.
Thai patent law was amended to comply with the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement in 1992, eight years before the effective date required. Some 15 years later, during 2006-2008, Thailand issued compulsory licenses (CL) for seven medicines. Although this was allowed under TRIPS flexibilities, it has generated debate, both within Thailand and internationally, concerning whether, on balance, Thailand has benefitted from the restricted patent legislation resulting from TRIPS, or the unrestricting of it through CL. The debate arises because those concerned principally with health consider patents to lead to reduced access to essential medicines, and hence reduced health, whereas those principally concerned with trade see patents as the means to secure development and availability of new medicines and foreign investment. This thesis aims to understand better the implications of strengthening or weakening patent protection through systematically examining the relationships between price, access to current medicines, access to future medicines (through market entry of new medicines) and foreign investment in a more holistic fashion, both within the pharmaceutical industry specifically and the economy more generally. To address this overall aim, four objectives were set. The first was to assess the impact of patents on pharmaceutical prices. The debate hinges on the relationship between price and patents, and hence it is imperative to first establish this relationship in Thailand. Ordinary least squares regression was employed to estimate the impact of patent upon price, while controlling for market and medicine factors. The findings show that patents are associated with a price increase of approximately 200%.Second, as price is argued to be the main restriction on access to medicines, it is important to assess the role of price in determining access to medicines. A probit model indicated that price is not a significant determinant of a medicine being listed on the National List of Essential Medicines (NLEM); however, price impedes access to non-NLEM medicines significantly. Third, patent legislation will also affect the process for the launch of new medicines within a country. A Cox proportional hazard model was used to analyze the launch experience of new medicines to Thailand during 1982-2009.The empirical results show that policy related to patent law has a significant and positive impact on the rapidity of the launch of new products in Thailand. Most importantly, CL is shown to have a significant and adverse effect on the speed of new medicine launches in Thailand. The last objective is to examine the impact of stronger patent protection on foreign investment, both in the pharmaceutical industry specifically, and the wider economy more generally. The empirical estimation suggests that there is no significant change in foreign direct investment (FDI) inflows after the patent law amendment in 1992 and that weakening pharmaceutical patent protection using CL does not necessarily keep away foreign investors. In conclusion, from this thesis there is little evidence of benefit from patent law change. Therefore, stronger patent protection should not be accepted. The evidence from this thesis highlights that the critical issue in determining whether the Thai population has gained from stringent patent protection or not is the tension between current and future access. Patents increase the price of medicines and impede current access. However, patients benefit from greater access to new medicines. These findings suggest that the price of patented medicines should be monitored closely to avoid undesirable effect on access, together with work on a system to more effectively stimulate local R&D activity.
The contribution revisits the political foundations of the TRIPS Agreement with a view to determine its role and functioning under the changed socio-economic geopolitical conditions of today’s world economic order. The Agreement, which was concluded as part of and under the pressure of the GATT/WTO trade package, provides for internationally uniform standards of adequate protection of intellectual property in all States Members of the WTO, regardless of the differences of their economic development, industrial structures and social needs. As a global “deep trade agreement”, which governs not only cross border trade, but Members’ internal markets, it raises issues both of its compatibility with the principle of comparative advantage underlying international trade, and of the legitimacy of its interfering with domestic market regulation. The flexibilities, which have been built into the TRIPS Agreement, may mitigate concerns. However, the growing new bi- and pluri-lateralism of regional free trade agreements with their asymmetric intellectual property rules, the re-distribution of economic power among the developed and the emerging or rather the emerged countries, and the nature of strategic competition between globally acting multinational corporations have changed the rules of the game. The task ahead is to re-conceptualize the TRIPS Agreement as a framework regulation for national innovation markets, which at the same time are integrated into global markets to varying degrees. As such, it would form part of an open international economic law, which, in its turn, needs to be developed in order to overcome the rigid and already fading paradigms of international trade law. Only such a vision will help to accommodate intellectual property protection with the large diversity of industrial policies and with the many intellectual property-related public interests and policies, which WTO Members may or do adhere to.
This paper discusses IP enforcement issues in the member-states of the GCC with a specific focus on trademarks. It provides an outline of the evolution of Intellectual Property protection within the GCC, focusing in particular on the pre-TRIPS, TRIPS and TRIPS-plus eras, coupled with an overview of the trademark legislation of the different GCC countries, and comments on the perceived reasons why enforcement remains a problematic aspect within the region, notwithstanding the overwhelming of legislation with TRIPS. This paper also develops a cultural perspective on the GCC region, which creates awareness both of pre-Islamic precedents for intellectual property rights and of the particular conceptualization of rights, property and social responsibility for the greater good under the Shariah system; and by doing so, advances the discourse on IPR in the Arab world. Drawing from this cultural perspective, it is argued that a proper harmonization of TRIPS with Sharia law is required if they are to operate successfully within the GCC and gain the widespread public acceptance which will solve the problem of effective enforcement and contribute to the protection of intellectual property throughout the future of the GCC.
This chapter assesses the contribution regional FTAs make to the governance of patents and pharmaceuticals. In regulating trade, these FTAs form part of an international pattern of intellectual property law making. The chapter puts the provisions of the FTA Australia made with the United States in the context of international agreements and national laws. Dealing with such aspects as patentability, patent use rights, generics to market, compulsory licensing, and trade in pharmaceuticals, the purpose is to gauge whether these FTAs help meet the needs for medicines in the region. With the negotiation of the Trans-Pacific Partnership Agreement, this assessment remains alive.
This chapter highlights the current developments in the area of intellectual property having direct consequence for the prospects of Africa’s knowledge society. Even though African countries, especially the Least Developed Countries (LDCs), have not yet faced pressure from the EU, US, and EFTA for higher intellectual property standards, the situation may change soon with the imminent deadline for conclusion of Economic Partnership Agreements in 2014, the lapse of Africa Growth and Opportunities Act in 2015, and the expiry of the Cotonou Agreement in 2020. African countries will be well advised to decouple trade and intellectual property issues by promoting interregional trade or trade with other developing countries that do not demand TRIPS-Plus protection. They must also negotiate intellectual property within the ambit of the WTO.
The protection for Intellectual Property Rights (HKI) with higher standards than the one mentioned in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), known as TRIPs-Plus, has become a crucial legal issue in bilateralism era nowadays. This research is aimed at analyzing the stipulations in TRIPs-Plus in the case of Patent which is mentioned in several Bilateral Free Trade Agreement (BFTAs), analyzing the existence of TRIPs-Plus in BFTA between Indonesia and its business partner countries, and analyzing whether Indonesia needs to revise its Constitution regarding Patent to fulfill such commitment. This was a normative legal research which used constitutional, conceptual, and comparative approaches. The findings show that most of BFTA which are already agreed by developed and developing countries with their business partner countries , in the case of Patent, contain the standards of TRIPs-Plus. Such stipulation is also found in Indonesian Japan Economic Partnership Agreement (IJEPA). However, the revision of Constitution about Patent should be based on not only bilateral commitment, but also national interests.
A safe intellectual property rights (IPR) basis often becomes the decisive competitive advantage in the commercialization of research and development (R&D) results. But many actors in the markets of innovative products claim the lack of transparency in dealing with immaterial goods, especially patents. In this respect the internationalization of R&D adds difficulties, but also chances. This paper tries to categorize the historical and contemporary forces to homogenize the heterogeneous fields of IPR. This includes the question whether an intellectual property (IP) economy exists, is imaginable or only utopian in a worldwide dimension. Which factors play a role?
To provide a global context in understanding the persistence of media piracy in emerging economies such as the Philippines and Vietnam, this chapter broadly describes the ongoing politics of hegemony and resistance in the global intellectual property (IP) trade between the United States and China and economies of the Association of Southeast Asian Nations (ASEAN). Primarily relying on documentary evidence and applying the hegemony, relational, and social resistance theories, it investigates briefly how the United States gains hegemonic power in the field of IP through the cultural mechanism of law in multilateral, regional, and bilateral free trade agreements (FTAs) with the aid of U.S.-dominated multilateral institutions. It paints a global economic order with the United States occupying a privileged position at one end as the leading producer and exporter of IP goods and services in the emerging global creative economy, particularly in the fastest-growing Asia Pacific region, and China and piracy-laden members of the Association of Southeast Asian Nations (ASEAN) with trade ties with China such as the Philippines and Vietnam opposing this hegemony through piracy and resistance strategies on the other end. Contrary to the popular assessments of jurisprudence and industry-driven antipiracy campaigns which paint the piracy problem as simple case of theft and criminality or “cracks in law enforcement system,” this chapter argues otherwise and views piracy, particularly media piracy, as a form of social resistance or the “Weapons of the Weak” (Scott 1985) of IP-consuming countries against the US control of the global IP trade. For resisting countries, stricter IPR regime stifles technology transfer and harms their informal economy which generates national income and employment for their poor, migrants, and unemployed. Seen from this perspective, media piracy in the Asia Pacific region and the ASEAN, particularly in the Philippines and Vietnam, is more than just a theft of intellectual creation but a manifestation of an ongoing active and passive resistance against the U.S. hegemony in the global copyright trade.
TRIPS-plus provisions under the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS-plus provisions) are increasingly utilized in preferential trade agreements (PTAs), such as the economic partnership agreements and free trade agreements. The nature of this type of clause is very diverse, i.e., it may aim to clarify, interpret and narrow down a TRIPS flexibility; it may be a provision that goes beyond the minimum standard protection of TRIPS; it may consist of provisions that develop new matters not covered by the TRIPS Agreement or provisions that contain an obligation regarding other treaties or international rules. Current literature refers as TRIPS-plus to commitments that go beyond the “minimum standard principle” of the TRIPS Agreement, in contrast to the notion of flexibilities, which refers to those choices for multilateral treaty implementation which take the minimum standard of protection as the “ceiling” of their commitments. The impact of TRIPS-plus provisions in PTAs on international intellectual property (IP) law can be measured in three ways: the direct impact of one provision on another (recourse to principles of international law is a very useful tool for measuring such impact); the impact of one set of rules in the interpretation of another (recourse to dispute settlement bodies’ decisions is illustrative); and the impact on current and future multilateral negotiations (reference to the Doha Round negotiations on IP and World Intellectual Property Organisation standing committees sheds some light here).
This chapter highlights the current developments in the area of intellectual property having direct consequence for the prospects of Africa's knowledge society. Even though African countries, especially the Least Developed Countries (LDCs), have not yet faced pressure from the EU, US, and EFTA for higher intellectual property standards, the situation may change soon with the imminent deadline for conclusion of Economic Partnership Agreements in 2014, the lapse of Africa Growth and Opportunities Act in 2015, and the expiry of the Cotonou Agreement in 2020. African countries will be well advised to decouple trade and intellectual property issues by promoting interregional trade or trade with other developing countries that do not demand TRIPS-Plus protection. They must also negotiate intellectual property within the ambit of the WTO.
As I have noted in the preceding chapters, countries in SSA and their citizens have been marginalized in both international and domestic patent polity, respectively. These marginalizations challenge the legitimacy of both the domestic and the international patent regulatory frameworks. They also produce juridical outcomes that fail to recognize different levels of development among nations/regions. In order to substantiate these claims, this chapter investigates the evolutionary trajectories of the concept of patents and tests whether the ‘participation’ of SSA countries in TRIPS negotiations met the basic conditions of the theory of democratic bargaining in global trade relations. Do the undemocratic outcomes, if any, affect the implementation of TRIPS in SSA countries?
In this introduction we briefly review the literature on intellectual property rights and access to medicines, identifying two distinct generations of research. The first generation analyzes the origins of new intellectual property rules, in particular the World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), and the significance of TRIPS to developing countries. The second generation examines
national-level experiences, as countries adjust their laws and practices to conform to TRIPS. Based on the insights provided by the articles in the special issue, we contribute to the second generation by considering a pair of overarching sets of issues. First, we highlight the domestic political challenges that affect how countries go about implementing their new obligations under TRIPS. We argue that alliances and coalitions are necessary to underpin the use of policy instruments designed to conform to TRIPS while taking into account local
conditions and needs, and we present insights that allow us to understand why alliances and coalitions are difficult to construct and sustain in this area. Second, we explain why policies that many countries adopt in response to TRIPS often do not generate their desired or intended outcomes. In the last section of the introduction we review the articles that appear in this special issue.
Why do states create overlapping international institutions? This practice presents a puzzle: conventional wisdom suggests that states should use existing institutions to minimize the transaction costs of co-operation. This article proposes a bargaining approach to explain the
de novo
creation of overlapping international institutions. In this model, a dissatisfied ‘challenger’ state threatens to create a new institution, and a ‘defender’ state can propose to reform the currently focal institution. Overlapping institutions are created when the currently focal institution is (1) captured by interests opposed to the challenger and (2) domestic political pressure to abandon the status quo is intense. Similar to models of deterrence, the expectation that the new institution garners support among third parties is irrelevant for the equilibrium likelihood of
de novo
creation. A comparative analysis of international bargaining over energy, whaling and intellectual property rights provides empirical evidence.
This article focuses on the efforts of large intellectual property exporters, such as the United States, to curtail Net freedoms by means restrictive copyright and anti-circumvention measures through the Anti-Counterfeiting Trade Agreement (ACTA), other international agreements, and reforms of national legislation. These efforts have upset the historical balance between owners and users of copyright, leading to widespread global resistance. The defeat of the ACTA in Europe may represent the last hurrah of the U.S. and the European Union to globalize their norms of digital intellectual property rights. However, the U.S. and EU can still impose their standards on a bilateral basis.
This article seeks to explain institutional change in international patent politics since the conclusion of the 1995 Agreement on Trade-Related Aspects of Intellectual Property Rights (trips). I argue that the distribution of interests in this issue area adheres to a sharp North–South distinction, and that the pursuit of largely incompatible and conflicting patent agendas by industrialised and developing countries, respectively, has led to the gradual emergence of an international patent regime complex. Focusing on trips-plus measures under various Free Trade Agreements, patent enforcement clubs and a range of UN organisations which have recently gained relevance for international patent politics, I show how the distribution of interests in this area has led to the development of two parallel and partially inconsistent international governance structures. I conclude that the distribution of interests explains the propensity of regime complexes towards stability and change, with institutional change being particularly pronounced when overlapping interests among revisionist actors enhance the prospects of collective action.
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In May of each year, two leading organizations monitoring the ongoing status of global standards of copyright protection issue their regular annual reports, namely the Office of the United States Trade Representative (USTR) and the US-founded international software watchdog/lobby organization, the Business Software Alliance (BSA). Both reports encompass the Middle East region and the Arabian Gulf states specifically. This article examines the performance of the Arabian Gulf states, namely Bahrain, Kuwait, Oman, Qatar, Saudi Arabia, the United Arab Emirates and Yemen, in developing and establishing their copyright protection regimes, in light of the these two reports. It does so in the context of the challenges faced by the Gulf states in the context of their membership of the World Trade Organization (WTO) and their compliance with the WTO's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The article discusses the USTR's, 2010 Special 301 Report and the BSA's Seventh Annual BSA/IDC Global Software Piracy Study for 2010 as two authoritative benchmarks of the Arab Gulf states' performance in regional copyright protection. It suggests that, notwithstanding the development and enforcement challenges, both reports deliver a positive report to the region and to most of the Gulf states.
The revised template for US free trade agreements with developing countries contains a number of important changes that respond to concerns expressed by scholars and civil society actors about the expansion of private rights on intellectual property, particularly in the area of public health. Since the conclusion of the Uruguay Round negotiations and the adoption of the WTO Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS), the US has pursued new and expanded commitments in the area of intellectual property (IP) with a number of its trade partners. As of 1994, the US has sought such provisions in more than 15 free trade agreements (FTAs) containing standards that go beyond the requirements of the TRIPS Agreement. One of the major critiques raised against FTAs has been that they impinge upon the flexibilities established in the TRIPS Agreement. The sector most affected has been public health. Specifi-cally, critics have contended that FTAs "upset an important balance between innovation and access by elevating intellectual property at the expense of public health," thus marginalising the Doha Declaration on the TRIPS Agreement and Public Health, which confirms the right of all countries to protect public health and promote access to health for all. 1 In a substantial departure from past practice, the US recently relaxed several patent-related IP rules in revised versions of its FTAs with Colombia, Panama and Peru. This note examines the main elements of the amended agreements with the three countries, and raises some questions regarding the potential impact of such changes on third-party states where older, more restric-tive IP rules have already entered into force.
Storytelling about technology can be optimistic or pessimistic. This article tells a pessimistic story based on the assumption that a small number of states will dominate the emerging international regulatory order. The story takes the form of an imagined history of the information society to the year 2015. It is based on research work being undertaken by the author in relation to a funded project on international business regulation. This historical scenario is presented as a possible future, not an inevitable one. The conclusion draws some parallels between information society and the feudalism of the dark ages.
Proponents of an IP maximalist agenda increasingly have been rebuffed in recent years. Developing country governments, NGOs, and Access to Knowledge (A2K) advocates have thwarted their efforts to ratchet up standards of intellectual property protection in multilateral intergovernmental forums such as the World Trade Organization, the World Intellectual Property Organization, and the World Health Organization. A2K advocates challenge the premises behind ever higher and broader intellectual property protection and seek, if not a rolling back of IP rights, at the very least a standstill. They argue that in the balance between rights and obligations, IP maximalists assert their rights without recognizing their obligations. IP maximalists always have seen TRIPS as a floor, not a ceiling. Ever since the WTO TRIPS negotiations that ended in 1994, they have been using every opportunity to increase intellectual property protection and enforcement beyond TRIPS. They have been relentless, focused, and have devoted untold resources to their quest for higher global standards of intellectual property protection and enforcement. Undaunted by recent setbacks at the multilateral level, IP maximalists have launched a major, almost surreptitious, anti-A2K campaign focused on “counterfeiting”, “piracy” and “enforcement.
This paper, after providing a brief historical overview of the ways international agreements deal with public health-related IPRs, analyses the TRIPS-plus trend in Free Trade Agreements (FTAs) and its impact on access-to-medicines policies. It focuses on FTAs concluded by the USA and the Member states of the European Free Trade Association (EFTA) with a number of developing countries and their provisions on patents and test data protection. New obligations in this field go well beyond the TRIPS minimum standards and may seriously affect access in developing countries to affordable generic pharmaceutical products.
Aggressive pursuit of free trade agreements (FTAs) and customs unions (CUs) by major and minor trading powers alike challenges
the conventional wisdom in favor of such pursuit – competitive liberalization. An equally plausible explanation for an active
bilateral and regional trade agreement policy, one which effectively de-emphasizes multilateralism, may be competitive imperialism.
The protection and enforcement of intellectual property rights is one area in which new provisions, going beyond multilateral
rules, are being negotiated and written into FTAs and CUs. Such provisions may yield insights into which characterization
of bilateralism and regionalism – competitive liberalization or competitive imperialism – is more apt.
[Abstract] This article briefly presents an account of bilateralism in international economic relations-encompassing intellectual property regulation-that suggests that the TRIPS Agreement should never have been understood as a crowning point of international intellectual property regulation. The article explores the implications of this possible reformulation of the theory and place of the TRIPS Agreement in international intellectual property law and policy. The author argues that the new bilateralism, while similar in form, serves a different agenda from the old bilateralism which relied principally on commercial agreements as a means to stabilize, formalize and advance interests ostensibly mutual to the contracting parties. Notwithstanding this different function, and in spite of the deployment of coercive measures enforced through unilateral trade policy, the author seeks to consider what, if any, real prospects for gain may exist for developing countries under the new bilateralism.*****[Résumé]L’article fait un compte rendu du bilatéralisme dans les relations économiques internationales – qui englobent la réglementation de la propriété intellectuelle. L’article suggère que l’accord ADPIC n’aurait jamais dû être perçu comme un point culminant dans la réglementation internationale de la propriété intellectuelle. L’article explore les répercussions de cette reformulation possible de la théorie et du rôle de l’accord ADPIC sur le droit et la politique régissant la propriété intellectuelle sur la scène internationale. L’auteure soutient que le nouveau bilatéralisme, bien que de forme similaire, répond à un agenda différent de celui de l’ancien bilatéralisme fondé essentiellement sur les accords commerciaux en tant que moyens de stabiliser, de formaliser et de promouvoir les intérêts mutuels manifestes des parties contractantes. Malgré cette fonction différente et le déploiement de mesures coercitives mises en œuvre par le biais de politiques commerciales unilatérales, l’auteure cherche à analyser quels seraient, le cas échéant, les gains possibles pour les pays en développement dans le contexte du nouveau bilatéralisme.
The US has been a follower in the Free Trade Area (FTA) game. The Us has been one of the dominoes, one of the many nations succumbing to the 'demonstration effect' of the raft of FTA agreements and has rushed to jump onto the bandwagon (Baldwin, 1997). Even for those FTAs that the US has entertained, the initiative has most often come not from the world's remaining superpower but rather from the nominally weaker trading partner. Still, as the US has engaged in FTA negotiations, it has aggressively pursued a variety of US interests. In justifying publicly - often ex post - its FTAs, US government officials have articulated a series of national interests that fall within four categories: • 'Asymmetric reciprocity' that advantageously opens markets for US traders and investors; • Establishing precedents, models or serving as catalysts for wider trade agreements (competitive liberalisation); • Rewarding and supporting domestic market-oriented reformers; • Strengthening strategic partnerships. Notably, these motivations go well beyond direct, quantitative balances of the costs and benefits of trade liberalisation and have distinct international political economy connotations. US trade officials recognise international power relations and the dynamics of strategic, sequential bargaining in multiple forums. They appreciate that trade is much more than the mere exchange of goods and services. Rather, trade is an instrument for influencing the balance of power within states and affecting processes of political and economic change. In the 21st century, free trade arrangements are important tools of foreign policy that are intended to solidify partnerships, as military pacts did in earlier times. As we shall see, although these FTAs are not necessarily the optimal choices that the US might have made had it truly been the initiator and strategic thinker, each of the FTAs that the US has undertaken can reasonably be justified on the basis of a number, and in some cases on all, of these four national interest grounds. Taking advantage of a dual asymmetry - of market power and of interest salience - the US has not hesitated to leverage FTA negotiations to advance its broader international policy agendas.
In this paper, the relationship between multilateralism and international regionalism is examined from empirical and theoretical perspectives. An analysis of commodity flows suggests that the European Union, the North American Free Trade Area and a slowly emerging trading bloc centred upon Japan occupy an increasingly prominent role in an ongoing process of gee-economic adjustment centred upon regionalism. This resurgence of regionalism is often interpreted as a direct threat to multilateralism and the international regulatory framework embodied in the World Trade Organisation (WTO). The central contention of this paper is that multilateralism and regionalism are associated with different modes of regulation and a transformation is currently underway from Fordism and multilateralism supported by the WTO to a more flexible system of production based on regionalism. Regionalism in the world economy should therefore be interpreted as a powerful force fundamentally transforming the relationship between the world's principal economic players.
This paper examines the intellectual property clauses incorporated into recent bilateral and regional free trade agreements, particularly those signed by the USA with developing countries, and their implications for public health. The TRIPS-Plus provisions in these agreements are highlighted. These provisions are intended to put restrictions on the use of international non-proprietary names (INN), to extend patent duration beyond 20 years, to protect data of safety and efficacy with product exclusivity in the market, and finally to link patents to health registration. All these measures strengthen IP holders' rights, increasing the prices of new drugs and limiting room for public health authorities to provide necessary drugs to the population.
Examining 14 US free trade agreements (FTAs), this article presents a text analysis of their intellectual property (IP) provisions with reference to patents and data protection. For each type of provision present in a given FTA, a “unit of protection” is assigned in that category. This method allows us to estimate the evolution in protection for each type of provision, both relative to the Agreement on Trade-Related Aspects of Intellectual Property Rights standard and from one agreement to the next. The analysis reveals a global increase in IP rights (IPR) protection, as the agreements get more stringent and specific provisions get more intricate and complex. But it also shows that the increase of IPR protection is not strictly linear over time and that some variation does exist in the outcomes of the negotiations. Nevertheless, IPR is clearly on the rise, and close comparative analysis of the different texts sheds light on the process of the setting of these new standards. Ultimately, this analysis provides a snapshot of the challenges that will soon be brought to bear on the policies on access to medicine in developing countries.
Intellectual property concepts embodied in international treaties and national laws date back to the eighteenth century. Many fundamental concepts (originality in copyright law; confusion in trademark law; novelty or inventiveness in patent law) vary from one country's national legislation to another. Yet, many critics of the intellectual property system recognize that solutions to the problems, ranging from database protection to the Internet, should ideally be the same worldwide. In today's globalized economy, it makes sense to adopt rules to protect that take account of the laws and practices of other nations and of the work of international organizations. Protecting only domestic (or national) works or inventions would be counterproductive: it increases unfair competition from unprotected foreign works and inventions. This explains why intellectual property has been on the path of progressive internationalization since the early days of international trade, a phenomenon which has accelerated very significantly since the 1980s. The paper examines the four phases of this internationalization process. In the current phase, there are two important challenges that must be successfully tackled: the protection of traditional knowledge and the application of copyright to the Internet. During the Uruguay Round, several developing countries and transition economies (countries from Eastern and Central Europe in transition to a market economy) were learning the ropes of intellectual property law by and large a set of Western concepts. These countries are now coming to the table demanding appropriate protection of traditional knowledge. In parallel, the Internet's rapid growth and increasing use as a tool to disseminate copyrighted material may engender a fundamental shift in copyright usage. The paper examines these challenges and focuses on the possible approaches with a view to strengthening the intellectual property system.
Since the establishment of the TRIPs Agreement, intellectual property protection has been expanding rapidly, and many less developed countries have become dissatisfied with the international intellectual property regime. From bilateral free trade agreements to the increasing use of technological protection measures, many commentators fear that the recent "one-way ratchet" will roll back the substantive and strategic gains made by less developed countries during the negotiation of the TRIPS Agreement. Interestingly, intellectual property rightsholders feel equally threatened by the recent developments, in particular the development of the Doha Declaration, the World Summit on the Information Society, the WIPO Development Agenda, and the Geneva Declaration on the Future of WIPO. This Article challenges the incomplete views held by those on both sides of the debate and argues that the recent developments are neither new nor surprising. To help us better understand these developments, the Article traces the historical development of the international intellectual property regime and demonstrates that this regime is a product of repeated interactions between various sets of currents and crosscurrents. While the currents of multilateralism push for uniformity and harmonization, the crosscurrents of resistance enable countries to retain diversity while engaging in continuous legal experimentation. By bringing together these currents and crosscurrents, this Article demonstrates that the international intellectual property regime is an ongoing project that provides opportunities and crises for both developed and less developed countries, as well as rightsholders and individual end-users. This Article traces the origins of the Berne and Paris Conventions, the TRIPs Agreement, and the 1996 WIPO Internet Treaties. It discusses how countries became dissatisfied with the use of bilateral agreements to protect authors and inventors in foreign countries and thus pushed for the establishment of multilateral treaties. It also explores five crosscurrents that have emerged in the international intellectual property regime in recent years: reciprocization, diversification, bilateralism, non-nationalization, and abandonment. This Article suggests that these crosscurrents may undercut international harmonization efforts and create new challenges for the regime. It concludes by providing observations in five different areas: bargaining frameworks, regime development, global lawmaking, harmonization efforts, and judicial trends.
To date, issues of non-compliance and retaliation have arisen in only a handful of WTO dispute settlement cases. In these cases, the parties have confronted procedural issues stemming from the lack of clarity of Articles 21.5 and 22 of the Dispute Settlement Understanding. A draft DSU text has been proposed, but not adopted. Until these provisions are clarified, WTO Members continue to operate under the existing vague rules. Faced with implementation problems, the parties to disputes have resorted to bilateral agreements governing the procedures of their dispute. This note surveys these bilateral agreements, with a view to identifying the different solutions developed to resolve the interpretation of Article 21.5 and its relationship to Article 22. It focuses on three aspects of these agreements, namely, sequencing, appeal, and procedural objections.
This article develops a theory of multilevel choice of regulatory jurisdiction based on normative individualism, and suggests how certain features of the World Trade Organization (WTO) might be understood in terms of this theory. The WTO has some capacity for positive integration, as demonstrated in, for example, the harmonised minimum standards for intellectual property protection contained in the TRIPS agreement. Yet the WTO has generally not been used as a site for re-regulation in areas congruent with its de-regulation. However, in a limited way, and in particular contexts, it provides certain incentives for re-regulation at other sites. For example, both the SPS Agreement and the TBT Agreement encourage the formation of harmonised rules. These agreements require Member States to use international standards as a basis for their measures, with important exceptions.
Hegemons exercise power in the international system not only by manipulating material incentives but also by altering the substantive beliefs of elites in other nations. Socialization—the process through which leaders in these secondary states embrace a set of normative ideals articulated by the hegemon—plays an important role both in establishing an international order and in facilitating the functioning of that order. This article develops the notion of socialization in the international system and examines three hypotheses about the conditions under which it occurs and can function effectively as a source of power. The first hypothesis is that socialization occurs primarily after wars and political crises, periods marked by international turmoil and restructuring as well as by the fragmentation of ruling coalitions and legitimacy crises at the domestic level. The second is that elite (as opposed to mass) receptivity to the norms articulated by the hegemon is essential to the socialization process. The third hypothesis is that when socialization does occur, it comes about primarily in the wake of the coercive exercise of power. Material inducement triggers the socialization process, but socialization nevertheless leads to outcomes that are not explicable simply in terms of the manipulation of material incentives. These hypotheses are explored in the historical case studies of U.S. diplomacy after World Wars I and II and the British colonial experience in India and Egypt.
Susan K. Sell’s book shows how power in international politics is increasingly exercised by private interests rather than governments. In 1994 the WTO adopted the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which dictated to states how they should regulate the protection of intellectual property. This book argues that TRIPS resulted from lobbying by twelve powerful CEOs of multinational corporations who wished to mould international law to protect their markets. This book examines the politics leading up to TRIPS, the first seven years of its implementation, and the political backlash against TRIPS in the face of the HIV/AIDS crisis. Focusing on global capitalism, ideas, and economic coercion, this work explains the politics behind TRIPS and the controversies created in its wake. It is a fascinating study of the influence of private interests in government decision-making, and in the shaping of the global economy.
The advocation of stronger and higher levels of Intellectual Property Rights (IPRs) protection has been on the rise in recent
years, particularly since the establishment of the World Trade Organisation (WTO) in 1995. Although its establishment signalled
the beginning of a new phase in the protection of IPRs internationally, no more than a decade later, it is seen that such
a regime is still undergoing a number of significant changes. In this regard, the rise of bilateralism and the retreat of
multilateralism resulted in the so-called ‹TRIPS-Plus’ recipe in which developing countries are increasingly giving way to
the demands of the industrialised countries through incorporating higher levels of IPRs protection domestically. Although
the USA has often been viewed as the primary advocator and enforcer of the TRIPS-Plus recipe globally, this article shows
that in fact the European Union (EU) advocated the TRIPS-Plus recipe long before the USA. Thus, this article discusses the
case of the European TRIPS-Plus model with the Arab World as a clear demonstration of such a trend. Developing and Arab countries
are now faced with two determined superpowers acting at both the unilateral and bilateral levels to achieve their desired
higher standards of IPRs protection worldwide. This will further erode the flexibilities of the TRIPS Agreement, and will
entail grave repercussions for both the developing and Arab countries.
Thailand has proved that a well-funded, politically supported public policy could be effective in preventing the spread of HIV/AIDS on a national scale. It is currently facing increased pressure to accept higher standards of intellectual property (IP) protection (the so-called Trade-Related Aspects of Intellectual Property Rights (TRIPS)-plus) under bilateral free trade agreements (FTA) proposed by the United States. The proposed US FTA threatens to restrict the measures the country can take to pursue affordable drugs, and will affect the ability of Thailand to continue its successful anti-retroviral (ARV) treatment and other healthcare programmes. This article argues that the TRIPS-plus regime generates a negative impact on poor people’s access to medicines, and the ARV treatment programme in Thailand is presented as an illustrative example.
While international relations scholars have studied particular multilateral organizations, they have paid surprisingly little attention to multilateralism as an organizing principle of international political economy. A working hypothesis is that part of this inattention is due to the structure of international relations theory. How far can theories based.solely on isolated (asocial) states relating anarchically take us? This article examines three broad categories of theories--individualist, social-communicative, and institutional theories--and assesses their implications for international relations theorizing. Copyright 1992 by MIT Press.
In 1930, Congress approved the highly restrictive Smoot–Hawley tariff, the textbook case of pressure group politics run amok. Four years later, Congress passed the Reciprocal Trade Agreements Act (RTAA), surrendering much of its tariff-making authority to a policy process in which internationalists had increasing influence. While the United States had used reciprocity to expand exports before, the stick of discriminatory treatment took precedence over the carrot of liberalizing concessions. With the transfer of tariff-making authority to the executive, the United States could make credible commitments and thus exploit its market power to liberalize international trade. Despite later modifications, the RTAA set the fundamental institutional framework for trade politics.
Nations dwell in perpetual anarchy, for no central authority imposes limits on the pursuits of sovereign interests. … Because as states, they cannot cede ultimate control over their conduct to an supranational sovereign, they cannot guarantee that they will adhere to their promises. The possibility of a breach of promise can impede cooperation even when cooperation would leave all better off. Yet, at other times, states do realize common goals through cooperation under anarchy.
The speed with which Thailand has scaled up public provision of antiretroviral therapy (ART) has been unprecedented, with more than 80 000 individuals on treatment at the end of 2006 through Thailand's National Access to Antiretroviral Program for People Living with HIV/AIDS (NAPHA). This paper projects the cost effectiveness, the affordability and the future fiscal burden of NAPHA to the government of Thailand under several different policy scenarios until the year 2025.
An economic/epidemiological model of access to ART was constructed, and this composite model was calibrated to economic and epidemiological data from Thailand and other countries. The economic model adopts the conditional logit specification of demand allocation across multiple treatment modes, and the epidemiological model is a deterministic difference-equation model fitted to the cumulated data on HIV incidence in each risk group.
The paper estimates that under 2005 prices NAPHA will save life-years at approximately US2145 per life-year if second-line drugs are included. Enhancing NAPHA with policies to recruit patients soon after they are first eligible for ART or to enhance their adherence would raise the cost per life-year saved, but the cost would be small per additional life-year saved, and is therefore justifiable. The fiscal burden of a policy including second as well as first-line drugs would be substantial, rising to 23% of the total health budget by 2014, but the authors judge this cost to be affordable given Thailand's strong overall economic performance. The paper estimates that a 90% reduction in the future cost of second-line therapy by the exercise of Thailand's World Trade Organization authority to issue compulsory licences would save the government approximately US2145 to approximately US$940.
A serious analysis of Bilateral Investment Treaties (BITs) and their implications for both investment levels and the distribution of the gains from investment is timely. BITs have become the dominant international vehicle through which investment is regulated.
Far from being the leader, the US has been a 'domino' belatedly falling into line in the global rush toward bilateral and regional free trade arrangements. Often the initiative for negotiations has come from seemingly weaker trading partners. Once in the game, however, and aware of the asymmetries of market power and issue salience that enhance US bargaining leverage, the US has been aggressively pursuing a variety of commercial and diplomatic interests, both tactical and strategic, that include bolstering local democratic institutions and processes of economic reform, strengthening US security ties, accelerating region-wide commercial liberalisation by allying with a regional leader, establishing new precedents to use as bench markers in future trade negotiations, and otherwise using free trade accords to advance its comprehensive global trade policy agenda. Bilateralism and regionalism have opened the door to an explicit introduction of political criteria, in contradiction to GATT/WTO apolitical universalism. While often reactive to the initiatives of other nations, the US has not been indiscriminate, deflecting the entreaties of suitors where US international political economy interests are not served.
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