TRIPS: Oxford Handbook on International Trade Law

Abstract

TRIPS raises an array of complex questions and its implications for development, trade, and competition are dij cult to identify in the abstract. On the one hand, it risks favouring IP owners, traditionally residing in developed countries, at the expense of vigorous competition and open trade. On the other hand, as the scope of IP expands (for example in the context of GIs), it offers potential beneC ts to at least some developing countries. In addition, it provides developing country Members with the possibility of cross-retaliation as an effective means of inducing compliance of other Members with their WTO obligations following adverse rulings in WTO dispute settlement. J e Members’ ultimate response to the public health problems of developing countries (especially those with limited pharmaceutical manufacturing capacity) is also a significant achievement, although this would be best consolidated through the passing of the formal amendment to TRIPS and the use of the available flexibilities in practice.

Moving beyond the first decade of TRIPS, and even beyond Doha, WTO Members may need to reinvigorate discussions on areas of disagreement such as non-violation complaints, exhaustion, and anti-competitive practices. At the same time, they must recognize that TRIPS is not operating in a vacuum. Especially in the absence of progress under TRIPS from the perspective of all Members, IP laws including those relevant to international trade will continue to advance outside the WTO. This is already evident in the work of WIPO and several FTAs, most o[ en in the direction of strengthening IP rights, which may upset the balance achieved in TRIPS (if indeed it is regarded as having struck an appropriate balance to begin with). On the opposite side, UN calls for greater appreciation of human rights in TRIPS and its application should remind Members of the need to consider the wider ramifications of stronger IP protection in the longer term. While many debated the propriety of including TRIPS in the WTO to begin with, it need not be a one-sided document in future.

Keywords: TRIPS, World Trade Organisation, Intellectual Property, public health, human rights. Free Trade Agreements