Carrying a Good Joke Too Far: Treaty of Adhesion
88 Pages Posted: 23 May 2006
For over a century, to guard against fraud, abuse, and overreaching courts have employed the concepts of fairness and distributive justice in assessing contractual relations between parties. Many different legal systems throughout the world have used a variety of laws and doctrines to accomplish these goals of fairness and distributive justice. One such doctrine is the contract of adhesion doctrine. The contract of adhesion doctrine allows a judicial tribunal to interpret more favorably to a particular party contracts that, in general, result from one party having severely disproportionate bargaining power. As a result of this disproportionate power, such contracts of adhesion are imposed on one party by the other, with the "weaker" party have very little opportunity to negotiate the contract terms, and no meaningful choice in accepting grossly unfair or oppressive terms. While the doctrine has been used extensively in the domestic arena, use by international jurists to resolve disputes between countries has largely been absent.
Just as the doctrine is appropriate in the domestic context, so too should it be appropriate in the international context. The same concerns of protecting disadvantaged parties and mitigating the consequences of overreaching that drive domestic application - gross inequity of bargaining power, coercion, lack of meaningful alternatives, procedural irregularities and oppressive and one-sided obligations - call for applying the doctrine to international relations and treaties. This article calls for just that. The article examines the contract of adhesion doctrine and then evaluates whether the doctrine is suitable for international treaties. The new doctrine, treaty of adhesion, is then applied to a specific treaty, the international intellectual property treaty, Trade-Related Aspects of Intellectual Property Rights ("TRIPS").
TRIPS is viewed by many as resolving the conflict between the interests of developing countries in acquiring access to intellectual property goods against the interests of developed countries in obtaining increased protection for intellectual property goods. TRIPS resolved this conflict decidedly in favor of developed countries. It is argued that this was accomplished through a flawed negotiation process characterized by coercion and subterfuge. The article thus concludes that TRIPS is a treaty of adhesion. The article then discusses how TRIPS can be interpreted to account for the unfairness and oppression that characterized TRIPS' negotiation process and applies the doctrine to specific TRIPS provisions. Doing so requires WTO panels to interpret ambiguous TRIPS provisions in favor of developing countries. This will, among other things, provide developing countries with flexibility in honoring their TRIPS' obligations and avoid further widening the economic and technological gap between developing and developed countries.
Keywords: intellectual property, WTO, contracts, adhesion, general principles
JEL Classification: K10, K33
Suggested Citation: Suggested Citation