Abstract
AbstractThe article explains that the interpretation of the TRIPS Agreement by WTO dispute-settlement panels and the Appellate Body has palpably shifted since the establishment of the WTO in 1995. Some of this shift is also arguably present in disputes concerning other WTO instruments. This progressive shift comes at a time when key debates about TRIPS waivers are taking place on the rue de Lausanne, namely a first for the COVID-19 pandemic and a second possible one for environmental protection measures related to climate change. According to the proposed pluralist analysis of TRIPS, it was less likely as of 2020 that the WTO dispute-settlement system would find unjustifiable inconsistencies between WTO commitments, on the one hand, and measures to protect public health or mitigate climate change, on the other hand. Whether future Appellate Body will follow that jurisprudence is an open question. Though the analysis contained in the article may make the COVID-related TRIPS waivers doctrinally unnecessary and allow Members to take measures now, its main aim is to inform the debates about the waivers and the future interpretation of the TRIPS Agreement, including the three-step test.
Highlights
Discussions about a waiver applicable to certain obligations contained in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) at the World Trade Organization (WTO) took what some may have seen as an unexpected turn
Since 1995, key WTO Members, including the European Union and the United States, have remained staunch advocates for high intellectual property protection.2. Those Members, and others, first opposed the waiver sought by many Members to deal with the COVID-19 pandemic, and they were less than forthcoming in preliminary discussions about a waiver to allow Members to address climate change
In March 2021, the United States signaled a willingness to engage in the waiver discussions, putting pressure on the EU and pharmaceutical companies to be more accommodating of the demands made by developing nations and others
Summary
This is relevant because despite the TRIPS difference it is the same jurisdictions that decide TRIPS cases. In another report issued between EC–Asbestos and US–Cotton Yarn, the Appellate Body referred to the principle of good faith as ‘organic’, and implied that WTO law formed an integral part of public international law, noting that ‘the rules of treaty interpretation in Articles 31 and 32 of the Vienna Convention apply to any treaty, in any field of public international law, and not just to the WTO agreements’.61. From outside (analytically) the WTO, the cases show that the external norm can win the norm competition
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