The WTO's Application of 'the Customary Rules of Interpretation of Public International Law' to Intellectual Property

Abstract

The WTO Dispute Settlement Understanding requires that agreements be interpreted in accordance with the customary rules of interpretation of public international law. To this end Panels and the Appellate Body have applied the Vienna Convention on the Law of Treaties, yet they have not fully applied its principles of interpretation to the TRIPS Agreement. Those principles include that the intentions of the parties are revealed through the ordinary meaning of the terms of the treaty, in their context, and in light of its object and purpose. This article assesses the interpretation methods used in connection with the Agreement, and concludes that if the full ambit of those methods, particularly an analysis of the TRIPS Agreement's object and purpose, were utilized in disputes, the intentions of the parties would be more apparent in the reports. The competing objectives of intellectual property protection and the growth of free trade ought to be more readily apparent in the dispute settlement process. The preamble and objectives of the TRIPS Agreement gives neither of those objectives higher status, making TRIPS Agreement interpretation different from GATT. The article additionally analyzes the TRIPS' Agreement interpretative relationship with other intellectual property treaties and free trade agreements.