Legal Effects and Policy Considerations for Free Trade Agreements: What is Wrong with FTAs?

Abstract

The correlation between the motives and the results behind TRIPS-plus FTAs appears flawed. FTAs currently entail a shift of a fair balance of interests (if it ever existed) towards developed countries and there is need for action on the level of international law. Remedies must therefore be developed that correspond to the true significance of IP provisions in FTAs and that defend a fair balance of interests. With a view to providing a starting point for a better understanding of the political, economic and social linkages and parameters underpinning FTA provisions and, on that basis, for a development of remedies, this article undertakes to examine two main issues: First, the relationship under international law of TRIPS-plus FTAs to the pre-existing TRIPS regime and the relationship among the provisions of the various FTAs in order to assess the combined legal effect of the applicable rules of international law and of the TRIPS-plus obligations laid down in FTAs. Second, taking into account that background of legal effects, the motives or incentives for states at various levels of development to enter into negotiations over TRIPS-plus standards and to conclude respective FTAs are questioned. By way of conclusion, some initial thoughts on suitable ways to remedy the alleged asymmetries between short-term negotiation trade-offs and negative long-term macroeconomic effects of FTAs are sketched out.

Keywords: FTAs, free trade agreements, spaghetti-bowl, TRIPS-plus, international law hierarchy, VCLT, development, policy considerations, incentives, international IP reform