Trips and Treaties of Adhesion Part II: Back to the Past or a Small Step Forward?
31 Pages Posted: 29 May 2008 Last revised: 17 Sep 2008
Some in the international community have proclaimed that the international intellectual property system in general, and the Trade Related Aspects of Intellectual Property Rights (TRIPS) specifically, is falling apart. Such proclamations are misplaced. To be sure, TRIPS has generated turmoil and has been attacked from all sides. But, dissatisfaction with the system and efforts to reshape TRIPS reflects the push and pull on an evolving system; indeed, we are experiencing, arguably for the first time in international IP, a legitimate "push" from developing countries seeking fairness in the system. All of this suggests that we take a second look at TRIPS, from the viewpoint of addressing both sides' needs and making the system "fair."
If we accept that the international intellectual property system is unfair, a host of questions arises, including how we can consider fairness. I have argued elsewhere that one way to address the inherent unfairness is to embrace a treaty of adhesion doctrine. The doctrine refers to a treaty that was procured through coercion as a result of unequal bargaining power. Applying the doctrine to TRIPS will allow WTO jurists to interpret ambiguous TRIPS provisions in favor of developing countries.
This article continues that theme but responds to the potential criticism that adopting a treaty of adhesion doctrine will result in developed countries "regime shifting," that is, leaving the WTO for other favorable forums where they can exploit power asymmetries. A variety of reasons controvert this outcome, including the huge effort involved in procuring TRIPS and the accession of China, a new WTO emerging player with an attractive large trade market. The doctrine will have a positive effect on future bargaining leverage, as developing countries are now more knowledgeable about intellectual property, particularly as to adverse spillover effects in areas such as agriculture, health, and education.
Keywords: Intellectual property, international intellectual property, WTO, World Trade Organization, Treaty of Adhesion, Contracts of Adhesion, Unconscionability, Redistribution, Fairness, International Law, Distributive Fairness
JEL Classification: D63, D74, F02, F10, O1, O19, O34
Suggested Citation: Suggested Citation