Cross Retaliation Under TRIPS: A Creative Remedy When Power Disparity Exists

Abstract

The WTO system has largely achieved procedural fairness, yet substantial challenges persist in addressing the equity of legal remedies and enforcement, particularly amid significant disparities in economic power among member states. Such power imbalances necessitate a nuanced consideration in the design of the system to ensure that fairness transcends procedural aspects and reflects in substantive outcomes. In that context, Intellectual Property (IP) retaliation emerges as an innovative and temporary method to address these imbalances, offering a mechanism to level the playing field between developed and developing countries. While IP retaliation has gained traction as a strategic tool to mitigate power disparities, its mechanisms remain inadequately defined and require further empirical validation and refinement in practice. This highlights the need for ongoing reform within the WTO system to enhance both the clarity and effectiveness of IP retaliation, ensuring it serves as a viable and fair recourse in international trade disputes.