A Trade Agreement Creating Barriers to International Trade? ACTA Border Measures and Goods in Transit

82 Pages Posted: 16 Nov 2010 Last revised: 21 Feb 2014

See all articles by Henning Grosse Ruse-Khan

Henning Grosse Ruse-Khan

University of Cambridge Fellow, King's College Cambridge; University of Cambridge

Date Written: June 16, 2011


By its title, the Anti-Counterfeiting Trade Agreement (ACTA) considers itself a trade agreement. The negotiating parties, as well as its main proponents, emphasise the importance of strong intellectual property (IP) enforcement standards for international trade in IP protected goods. At the same time, the border measure rules in the ACTA draft text carry the potential to create significant barriers to international trade, especially in generic medicines. The controversy over transhipments of generic drugs from India to various developing countries seized while in transit through ports of EU member states demonstrates this potential: Merely on the basis of alleged patent infringements in the transit country, custom authorities seized several shipments of generic drugs - although the drugs did not violate any patents in the country of origin or the country of destination. Against the background of the EU transit seizure cases and the recent initiation of WTO dispute settlement proceedings by India and Brazil against the EU, this article examines the ACTA provisions on border measures. It focuses on the consistency of the ACTA rules with the existing international standards on IP enforcement and free trade under the WTO Agreement on Trade related Aspects of Intellectual Property Rights (TRIPS). Although primarily perceived as setting a floor of minimum standards only, some TRIPS provisions contain maximum standards or ‘ceilings’ for IP protection and enforcement beyond TRIPS standards. This in turn raises the question how ACTA rules relate to TRIPS standards, in particular those on border measures, as a matter of international law.

Keywords: International Trade, TRIPS, ACTA, Anti-Counterfeiting Trade Agreement, Goods in Transit, IP Enforcement, Border Measures

Suggested Citation

Grosse Ruse-Khan, Henning, A Trade Agreement Creating Barriers to International Trade? ACTA Border Measures and Goods in Transit (June 16, 2011). American University International Law Review, Spring 2011, Society of International Economic Law (SIEL), Second Biennial Global Conference University of Barcelona, July 8-10, 2010, Max Planck Institute for Intellectual Property, Competition & Tax Law Research Paper No. 10-10, Available at SSRN: https://ssrn.com/abstract=1706567

Henning Grosse Ruse-Khan (Contact Author)

University of Cambridge Fellow, King's College Cambridge ( email )

King's Parade
Cambridge, CB2 1ST
United Kingdom

University of Cambridge ( email )

Trinity Ln
Cambridge, CB2 1TN
United Kingdom

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