Treaty Interpretation in WTO Dispute Settlement: The Outstanding Question of the Legality of Local Working Requirements

52 Pages Posted: 29 Jul 2010

See all articles by Bryan Mercurio

Bryan Mercurio

Chinese University of Hong Kong - Faculty of Law

Mitali Tyagi

Independent

Date Written: July 28, 2010

Abstract

This article explores treaty interpretation in dispute settlement at the World Trade Organization (WTO) by seeking to resolve the unanswered question of whether local working requirements – domestic provisions which allow the grant of a compulsory license when a patent is not “worked” in that country – are legal under the international trade regime. The issue remains in flux as local working requirements appear to be inconsistent with the Agreement on Trade-Related Aspects of International Property Rights (TRIPS) Article 27, which prohibits discrimination as to “whether products are imported or locally produced.” However, TRIPS Article 2.2 incorporates the substantial majority of the Paris Convention, including Article 5(A)(2), which may specifically allow working requirements. Analyzing the issue in strict adherence to the principles of treaty interpretation that guide decision-making in the WTO’s Dispute Settlement Body, we conclude that the incorporation of Article 5(A)(2) of the Paris Convention cannot be read down, and thus working requirements are consistent with the TRIPS Agreement. This Article is therefore intentionally and unapologetically a technical analysis which evaluates and resolves a legal conflict using all available sources of law and is not a discussion of the policy rationale behind local working requirements.

Keywords: WTO, TRIPS Agreement, patents, working requirements, treaty interpretation

JEL Classification: K33, K32, I18

Suggested Citation

Mercurio, Bryan Christopher and Tyagi, Mitali, Treaty Interpretation in WTO Dispute Settlement: The Outstanding Question of the Legality of Local Working Requirements (July 28, 2010). Minnesota Journal of International Law, Vol. 19, No. 2, pp. 275-326, 2010 , Available at SSRN: https://ssrn.com/abstract=1650416

Bryan Christopher Mercurio (Contact Author)

Chinese University of Hong Kong - Faculty of Law ( email )

6/F Western Teaching Complex
Shatin, New Territories
Hong Kong
(852) 2696 1139 (Phone)

Mitali Tyagi

Independent ( email )

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