International Trade, Public Health and Intellectual Property Maximalism: The Case of European Border Enforcement and Trade in Generic Pharmaceuticals

Global Trade and Customs Journal, Vol. 5, No. 4, pp. 155-169, 2010

Posted: 18 Apr 2010

See all articles by Shashank P. Kumar

Shashank P. Kumar

Appellate Body Secretariat, World Trade Organization; National Law University, Jodhpur

Date Written: March 4, 2010

Abstract

Even as the world witnesses another pandemic, industrialized nations and their industries continue their efforts to “rachet-up” levels of Intellectual Property (IP) protection. Such a maximalist agenda drives another paradigm shift in the international IP regime today. While maximalists employ several methods to promote their agenda, this work seeks to study the case of European border enforcement law (EC Regulation 1383) and its effects on international trade in generic drugs. Triggered by several incidents involving “seizure” of in-transit generic drugs by European customs, the issue continues to be “hotly debated” on at the international level and is of immense contemporary relevance to larger issue of global justice.

After a discussion on the evolution of European border enforcement law and the its interpretation by European courts to determine its scope, this work seeks to study the effect of EC Regulation 1383 on international trade in generic pharmaceuticals by studying several instances of “seizure” of generic pharmaceuticals in-transit between developing nations and the international debate it has generated at the WTO. The discussion highlights the maximalist (and “TRIPS-Plus-Plus”) nature of the European law and raises important issues concerning the interpretation of Agreement on Trade-Related Aspect of IP Rights, public health, Doha Declaration and the possibility of a future WTO dispute. The discussion concludes with some comments on broader issues of global justice and the WTO that are raised by the European law and its enforcement affecting access to medicines in developing countries.

Keywords: WTO, TRIPS, IP Maximalism, Border Enforcement, Generic medicines, global justice, access to medicines

JEL Classification: K32, K33

Suggested Citation

Kumar, Shashank P., International Trade, Public Health and Intellectual Property Maximalism: The Case of European Border Enforcement and Trade in Generic Pharmaceuticals (March 4, 2010). Global Trade and Customs Journal, Vol. 5, No. 4, pp. 155-169, 2010. Available at SSRN: https://ssrn.com/abstract=1564960

Shashank P. Kumar (Contact Author)

Appellate Body Secretariat, World Trade Organization ( email )

Rue de Lausanne 154
Geneva 21, CH-1211
Switzerland

National Law University, Jodhpur ( email )

NH-65
Mandore
Jodhpur, Rajasthan 342 304
India

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