International Technology Transfer and TRIPS Article 66.2: Can Global Administrative Law Help Least-Developed Countries Get What They Bargained for?

Abstract

This paper argues that an agreed substantive minimum standard for implementation of Article 66.2 would be helpful to the developing world. Such a standard would clarify what is required of developed countries to meet their technology transfer obligations under TRIPS, similar to the clear standards that developing countries are held to in meeting their obligations to enact stronger IPRs under TRIPS. This paper also explores possible mechanisms by which such a standard could be developed in the context of the emerging idea of Global Administrative Law. Although there are multiple options, the best place to develop a standard for implementation of Article 66.2 seems to be the Council for TRIPS.

Part II gives some background on international technology transfer, discussing the factors affecting the flow of technology transfer to developing nations, including the effect of adopting intellectual property rights, and also discussing some suggested policies for improving technology transfer. The fact that economic factors such as human capital and technological infrastructure, which are lacking in LDCs, are required for a nation to gain any significant ITT benefits from implementing IPRs, underscores the need for the developed world to assist LDCs in improving these factors, and thus the need for a better implementation of Article 66.2. Part III gives some background on the TRIPS Agreement and discusses provisions relating to technology transfer, including Article 66.2. Part IV discusses the current state of implementation of Article 66.2, and argues that adoption of a substantive minimum standard would be helpful in generating more effective implementation. Part V examines possible mechanisms for the development and enforcement of such a standard within the framework of Global Administrative Law.

Keywords: TRIPS, 66.2, International Technology Transfer, Global Administrative Law