‘Seizing’ Pharmaceuticals in Transit: Analysing the WTO Dispute that Wasn’t

(2012) 61(2) International and Comparative Law Quarterly 389-426

38 Pages Posted: 27 Sep 2012

See all articles by Bryan Christopher Mercurio

Bryan Christopher Mercurio

Chinese University of Hong Kong - Faculty of Law; University of New South Wales - Faculty of Law

Date Written: 2012

Abstract

Several recent detentions of generic pharmaceutical products transiting through the European Union (EU) for suspected infringements of intellectual property rights raised serious concerns for public health advocates and threatened to expose systemic problems existing in the World Trade Organization’s (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The detentions not only garnered international attention, but India and Brazil formally began WTO dispute settlement proceedings against the EU. The parties recently reached a mutually agreed solution to the matter and the proceedings have been halted, leaving unanswered the complex legal and technical questions raised by the detentions of pharmaceuticals in transit. Despite a solution being reached in this dispute, the matter will undoubtedly resurface in the near future for a number of reasons. For instance, the EU is attempting to export its laws to its trading partners through the negotiation of free trade agreements and in other forums such as the recently concluded Anti-Counterfeiting Trade Agreement which increases the likelihood that similar detentions will occur at some point in the future. Moreover, recent trends in international intellectual property law indicate a move towards increased protection and enforcement in at least the short and medium term. The issue therefore offers the opportunity for rich legal analysis into an under-explored, yet increasingly important, aspect of the WTO law.

Keywords: WTO, intellectual property, TRIPS, GATT, generic pharmaceuticals, access to medicines

JEL Classification: K23, K30, K33, K42, O34

Suggested Citation

Mercurio, Bryan Christopher, ‘Seizing’ Pharmaceuticals in Transit: Analysing the WTO Dispute that Wasn’t (2012). (2012) 61(2) International and Comparative Law Quarterly 389-426. Available at SSRN: https://ssrn.com/abstract=2152457

Bryan Christopher Mercurio (Contact Author)

Chinese University of Hong Kong - Faculty of Law ( email )

6/F Western Teaching Complex
Shatin, New Territories
Hong Kong
(852) 2696 1139 (Phone)

University of New South Wales - Faculty of Law

Kensington, New South Wales 2052
Australia

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