The (Non) Use of Treaty Object and Purpose in Intellectual Property Disputes in the WTO

SUSTAINABLE DEVELOPMENT PRINCIPLES IN THE DECISIONS OF INTERNATIONAL COURTS AND TRIBUNALS 1992–2012, Cambridge University Press, 2012

Max Planck Institute for Intellectual Property & Competition Law Research Paper No. 11-15

36 Pages Posted: 19 Oct 2011

See all articles by Henning Grosse Ruse-Khan

Henning Grosse Ruse-Khan

University of Cambridge - Faculty of Law; Max Planck Institute for Innovation and Competition

Date Written: September 28, 2011

Abstract

Dispute settlement Panels and the Appellate Body of the World Trade Organization (WTO) have long been criticised for a ‘textual’ approach to treaty interpretation which focuses too much on the ordinary meaning of treaty provisions. Arguably this approach responded to fears of judicial activism and overreach by the judicial bodies which in turn may encroach upon sovereignty and national autonomy of WTO Members. In some decisions however, especially the Appellate Body has taken a more pro-active role, using for example object and purpose of the WTO Agreements to fill gaps and clarify ambiguities. For example in the famous US – Shrimp dispute, the Appellate Body emphasised that the sustainable development objective enshrined in the WTO preamble ‘must add colour, texture and shading to our interpretation of the Agreements annexed to the WTO Agreement’.

This of course includes the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). With its Articles 7 and 8, TRIPS is probably the only WTO Agreement which contains explicit textual expressions of its object and purpose. In the Doha Declaration on TRIPS and Public Health, all WTO Members stressed the importance of these norms for interpreting TRIPS. In substance, they align with the principle of integration and reconciliation of economic, social and environmental objectives. This principle is at the core of the notion of sustainable development as a concept in international law. It has been expressed in the ILA Declaration of Principles of International Law Related to Sustainable Development.

Against this background, one would expect Articles 7 and 8 TRIPS to play a prominent role in WTO dispute settlement related to TRIPS. Anyone familiar with IP-related disputes in the WTO however knows that this is not the case. This paper analyses when and how TRIPS jurisprudence has utilised these norms and tries to offer explanations for their (non) use.

Keywords: WTO Dispute Settlement, TRIPS, Sustainable Development

Suggested Citation

Grosse Ruse-Khan, Henning, The (Non) Use of Treaty Object and Purpose in Intellectual Property Disputes in the WTO (September 28, 2011). SUSTAINABLE DEVELOPMENT PRINCIPLES IN THE DECISIONS OF INTERNATIONAL COURTS AND TRIBUNALS 1992–2012, Cambridge University Press, 2012 ; Max Planck Institute for Intellectual Property & Competition Law Research Paper No. 11-15. Available at SSRN: https://ssrn.com/abstract=1939859

Henning Grosse Ruse-Khan (Contact Author)

University of Cambridge - Faculty of Law ( email )

10 West Road
Cambridge, CB3 9DZ
United Kingdom

Max Planck Institute for Innovation and Competition ( email )

Marstallplatz 1
Munich, Bayern 80539
Germany

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