Relations between the TRIPS Agreement and the Anti-Counterfeiting Trade Agreement: A Plurilateral Instrument Having Multilateral Functions with Little Multilateral Process

Abstract

The Anti-Counterfeiting Trade Agreement was negotiated among developed and some more advanced developing countries to enhance the enforcement aspects of intellectual property rights protection. The main purpose of it was to raise the international standards of enforcement through establishing a plurilateral agreement. The agreement has its multilateral functions partly because of the nature of the agreement and partly because of the MFN obligations under the TRIPS Agreement. For non-Parties, the intellectual property rights of their nationals are to be protected by the agreement because of the MFN obligations under the TRIPS Agreement. Although this is theoretically beneficial to non-Parties, they are not to receive substantial benefits mainly because non-Parties are mostly not the major origins of intellectual property right holders. However, the agreement is to adversely affect the products or services coming from all WTO Members, whether or not they are the Parties. Developing countries producing products (such as generic drugs) and those in need of such products could be adversely affected by such higher standards. Since the agreement has such multilateral functions and since there is a lack of multilateral process in the enactment of this plurilateral agreement, there is a need to cope with the problem. The paper proposes some steps to be taken by the Parties to reduce the concerns of such multilateral function so that it will be more compatible with multilateral system. The steps include the establishment of regular consultation mechanism with non-Parties, the publishing of information concerning the implementation of the agreement to reflect whether there is a genuine manner of carrying out the higher standards of enforcement and the proper terms to be drafted in favour of developing country members of the WTO to attract more non-Parties to join the agreement and to reduce the gap between the plurilateral agreement and the multilateral system.