The International Law Relation between TRIPS and Subsequent TRIPS-Plus Free Trade Agreements: Towards Safeguarding TRIPS Flexibilities?

41 Pages Posted: 23 May 2011

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: May 19, 2011

Abstract

Fifteen years after the WTO TRIPS Agreement entered into force, international IP law and policy have moved on. Since the mid-nineties, countries interested in higher IP standards have successfully shifted IP negotiations away from WIPO and WTO towards Free Trade Agreements (FTAs). The trend towards TRIPS-plus obligations in FTAs has led to changes in the perception of TRIPS: initially viewed by developing countries as serving primarily the interests of the IP exporting industries in the developed world, TRIPS is now often acknowledged for the flexibilities it offers. Various institutions, policy makers, and NGOs have highlighted the importance of TRIPS flexibilities - especially in the public health and human rights context - and have called for safeguarding the right of WTO Members to exercise them against TRIPS-plus obligations in FTAs. This includes the main demandeurs of TRIPS-plus obligations FTAs which increasingly commit themselves to safeguarding TRIPS flexibilities.

Given all these statements and assurances, the question arises how FTAs have incorporated these promised policy changes and whether the relevant FTA provisions really translate political assurances into binding treaty language. This Article aims to examine this question from a public international law perspective. It analyses the relationship between TRIPS flexibility provisions and TRIPS-plus FTAs. By looking at norms in general international law, the TRIPS Agreement, and in TRIPS-plus FTAs which determine this relationship, the main research question is whether and when TRIPS flexibilities can prevail over TRIPS-plus obligations in FTAs.

Suggested Citation

Grosse Ruse-Khan, Henning, The International Law Relation between TRIPS and Subsequent TRIPS-Plus Free Trade Agreements: Towards Safeguarding TRIPS Flexibilities? (May 19, 2011). Journal of Intellectual Property Law, Vol. 18, No. 2, p. 1, 2011, Available at SSRN: https://ssrn.com/abstract=1849204

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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