Rebalancing TRIPS

Abstract

Application of the World Trade Organization’s dispute resolution procedures to the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) has provoked a variety of reactions over time. Initially perceived as a significant loss for developing countries, more recent responses maintain that these fears were unfounded. This Article argues that the availability of adjudication through the WTO has indeed had significant consequences for the policy space of developing countries — just not in the manner initially imagined. One of the most important yet underappreciated consequences of the decision to link trade and intellectual property has been the conflation of trade and intellectual property jurisprudence in TRIPS dispute resolution. The decision to subject intellectual property decision making to adjudication within the trade system has led to overly restrictive interpretations that do not respect the intentions of the parties or the needs of intellectual property policy making. This Article proposes the use of a more deferential standard of review and a human rights presumption to remedy these overly restrictive interpretations.

Keywords: TRIPS Agreement, intellectual property, human rights, development, international adjudication, international law