WTO Dispute Settlement and the Agreement on Trade-Related Aspects of Intellectual Property Rights
The WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (the "TRIPS Agreement") has ushered in a new generation of legal issues that may ultimately find their way into the WTO dispute settlement arena. In light of the extensive coverage given to the WTO Dispute Settlement Understanding (DSU) elsewhere in this book, and the broad range of dispute-related issues raised by the TRIPS Agreement, this chapter will focus on issues that are more or less specific to the TRIPS Agreement.The TRIPS Agreement is unique in the WTO context; it is the only WTO agreement that requires the members to affirmatively (or positively) incorporate complex substantive legal standards into national laws that govern both domestically-produced and imported goods. It relies for many of its rules on cross-reference to an existing body of multilateral conventions administered outside the WTO. The substantive rules imposed by the TRIPS Agreement are the subject of existing bodies of judicial opinion in the national and regional territories that are now subject to its discipline. Underlying the superficial certainty of the TRIPS Agreement substantive prescriptions are existing gulfs of interpretative difference regarding the meaning of many of its rules.The TRIPS Agreement is unique in that it establishes minimum standards applicable to the enforcement of legislation by WTO members. The establishment of minimum enforcement standards necessarily implies that claims alleging the maintenance of inadequate enforcement procedures can and may be brought before the WTO Dispute Settlement Body, yet the TRIPS Agreement is silent on just how such a claim might be proven, e.g., where the threshold of inadequate enforcement might lie.Identifying methods and sources of interpretation for the TRIPS Agreement's substantive requirements, as well as delimiting the appropriate threshold of adequate enforcement, are but two of the intriguing tasks facing the WTO Dispute Settlement Body.
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ABSTRACT: The World Trade Organisation oversees major international agreements in three areas (WTO, 1995): the old GATT plus several understandings on interpretations (now named 'GATT 1994') and associated agreements on trade in goods; the General Agreement on Trade in Services (GATS); and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement). These agreements are sometimes said to form the 'three pillars' of the WTO system. While the image may suggest more architectural elegance than exists in reality, the important message is that the WTO system has three areas of strength based on sets of multilaterally agreed rules concerning trade in goods, trade in services, and the protection of intellectual property. Each of the agreements covers a separate area of economic activity and government policy. However, the three pillars were designed to lend strength to each other; all WTO agreements are integrated into a system. This paper will focus on the TRIPS Agreement, which is a comprehensive multilateral accord establishing unconditional obligations for all WTO members' intellectual property rights policies with regard to copyright and related rights, trademarks, geographical indications, industrial designs, patents, layout-designs of integrated circuits, and trade secrets. The Agreement prescribes minimum standards for the protection of these categories of intellectual property at a level comparable to the standards in the major industrial countries; it also stipulates enforcement, as well as due process requirements. The purpose of this paper is to examine how intellectual property rights fit into the WTO system, and this will be done under three principal aspects: integration by balance of concessions negotiated during the Uruguay Round; integration based on shared principles; and integration by means of linked dispute settlement.