WTO Member States Research Articles

China's problematic recognition of a right of priority based on an application filed in Taiwan

Before China entered into the ‘Cross-Strait Agreement on Intellectual Property Rights Cooperation and Protection’ with Taiwan, China did not recognize a right of priority based on a Taiwan application. Under Article 2 of the Cross-Strait IP Agreement, China agreed to permit Taiwanese applicants to claim priority based on their Taiwan applications. China has issued three regulations to comply with Article 2. However, by doing so, China violates Article 2.1 of the TRIPS Agreement because a Taiwan application is a legitimate foreign application under Article 4 of the Paris Convention and, therefore, non-Taiwanese applicants may claim priority based on a Taiwan application. China also violates the doctrine of ‘Most-Favoured-Nation (MFN) Treatment’ under Article 4 of the TRIPS Agreement because the grant of priority based on a Taiwan application is only applicable to Taiwanese applicants, which discriminates against non-Taiwanese applicants of any WTO member states other than Taiwan.

Study on Enforcement of TRIPS' IP Minimum Standards Within the National Legal Systems of the WTO Member States

1. Intellectual property rights constitute a valuable and important asset in international trade: inter alia, they ensure loyal competition amongst undertakings and incentivize and foster innovation and creativity, to the mutual advantage of all stakeholders, either consumers and competitors, eventually having a beneficial influence on the social and economic welfare. 2. When considering the contribution that WTO has given – since its inception – to the strength and stability of the world’s economy in a globalized system, it is undeniable that a material part of this contribution is attributable to the provision, by the TRIPS Agreement, of certain minimum standards of protection of the intellectual property rights (Parts I and II of TRIPS) (hereinafter, the “IP Minimum Standards”) and to their implementation within the national legal systems of the single WTO Members, either developed and developing countries. 3. However, the sole implementation of such IP Minimum Standards without a correspondent implementation and actual application of the set of rules dedicated to their enforcement (Part III of TRIPS) could not be sufficient to reach the objectives for which such IP Minimum Standards were negotiated and accepted within the TRIPS Agreement at the end of the Uruguay Round; and actually it appears to be a only partial performance of the obligations undertaken by WTO Members under the TRIPS Agreement.

A Future for Multilateralism?: New Regionalism, Counter-Multilateralism and Perspectives for the World Trade System after the Bali Ministerial Conference

Participation in the World Trading System is generally considered to bring substantial benefits. However, the developments of the Doha Round show, that the multilateral trade negotiations are progressing at an unprecedentedly slow pace accompanied by constant setbacks. This resistance towards stronger multilateral economic integration may at first appear not very plausible. This article sets out to look for the causes of these difficulties. From that base, it describes the ways that WTO Member States are seeking different strategies for economic integration on the bilateral, regional and inter-regional levels. The perspectives for the future of the World Trading System and multilateralism are discussed.

Technische Universitaät Darmstadt v. Eugen Ulmer KG

In Technische Universität Darmstadt v. Eugen Ulmer KG, the Court of Justice of the European Union (ECJ or Court) addressed several important copyright issues stemming from a practice that continues to confound many legal practitioners and adjudicators: the mass digitization of library collections. The judgment adds to an emerging body of jurisprudence decided in the context of a trend toward greater digitization that could ultimately facilitate the development of a global, digital library. To date, the jurisprudence has largely been formed by cases challenging mass digitization that are percolating through the United States courts and have attracted international attention and criticism. The ECJ decision thus provides an important point of reference for evaluating how different jurisdictions balance the rights of authors against the public interest, as served by relevant fair use exceptions consistent with their international obligations under traditional copyright treaties, the 1996 WIPO Copyright Treaty, and the 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) applicable to all WTO member states.

The Limited Economic Case for Subsidies Regulation

The International Centre for Trade and Sustainable Development has assembled a task force on Rethinking International Subsidy Disciplines. This paper, prepared for the task force, considers the economic case for general disciplines on subsidies by WTO member states. It considers the two principal economic arguments for such disciplines – the possibility that subsidies create negative international externalities for other nations, and the possibility that subsidies disciplines can tie the hands of member governments in a manner that discourages government waste. It concludes that a compelling case can be made for prohibiting new subsidies to import-competing industries that undermine negotiated market access concessions. The economic case for disciplines that go beyond this principle is weak for a variety of theoretical and practical reasons, although industry or sector-specific limits on subsidies may be useful in some instances.

"Protecionismo privado": a atuação da sociedade civil na regulação do comércio internacional

A proliferação de padrões ambientais (ou requisitos) voluntários, formula-dos e administrados por organizações não governamentais - de forma total-mente independente ou com diversos graus de participação governamental - tornou-se questão problemática para muitos países de menor desenvolvimento relativo. Essas fontes não tradicionais de regulamentação global podem constituir barreiras injustificáveis ao comércio internacional que escapam da competência da OMC. Nesse contexto, objetiva-se verificar em que medida as regras multilaterais de comércio podem ser aplicadas a restrições comerciais impostas por atores não estatais. Na medida em que as regras da OMC são aplicáveis unicamente a Estados-membros, constata-se a importância de averiguar de que forma esses padrões privados voluntários envolvem a participação do governo ou como esses padrões podem ser atribuídos aos governos no que concerne às regras da OMC.

Use It or Lose It: Assessing the Compatibility of the Paris Convention and TRIPS Agreement with Respect to Local Working Requirements

To what extent should countries with different levels of social and economic development be treated differently; to what extent are existing international standards too high for developing countries and least developed countries? This article analyses a particular question of World Trade Organization law at the crossroads between legal and economic matters in a development context. It analyses the question of whether countries are (and should be) allowed to require local production in return for the grant of a patent right. An examination of relevant national legislation from a selection of WTO Member States sets the stage for an analysis of the question of how the Paris Convention and the Agreement on Trade-Related Aspects of Intellectual Property Rights—a priori establishing contradictory principles with respect to local working requirements—can be reconciled with the economic literature on point. The authors offer a rubric/checklist of elements to be considered in evaluating the benefits of local working requirements and suggest that below a certain threshold, which is malleable to the principle of graduation, exceptions to obligations under the TRIPS Agreement should be made.

IP Protection and International Trade

The article explores how intellectual property IP manifests in international trade. The Trade Related Aspects of Intellectual Property TRIPS Agreement was adopted and signed by the WTO member states in need to avoid that intellectual property would become a barrier in international trade. But nowadays we can see IP battles that may affect the way international trade is developed. Such is the case of Samsung vs. Apple which is sprinkled with patents, trademarks or industrial designs case files and also with banning products on one or more markets. The paper studies the way this national litigations interfere with international trade, analyzing some of court decisions and their impact in a product presence on a certain market.

Domestic-Level Factors and Negotiation (In)Flexibility in the WTO

Abstract Some suggest that the fault lines of the WTO’s perceived failures actually lie in failures at the domestic level. This study examines the factors that can explain flexibility (and inflexibility) in multilateral trade negotiations within WTO member states. To shed light on the role of domestic factors in influencing WTO positions, we examine one member state in connection with a high-level meeting. India at the July 2008 Ministerial is selected primarily for methodological reasons. The empirical analysis provides preliminary support for the proposition that domestic policy-making structures marked by continuous information exchange and coordination are more likely to yield negotiation flexibility in multilateral talks. More specifically, the intense interaction that marks the relationships between actors involved in policy making on Non-Agricultural Market Access (NAMA) and services, where the Indian negotiation position was flexible overall, stands in contrast to what took place in the area of agriculture, where India took a manifestly inflexible stand. Competing explanations fail to fully account for the variation in these negotiating postures. A key insight from the analysis is that organized and regularized consultations, involving the same actors over time, are important. There is also a need for public outreach strategies in connection with high-level WTO meetings.

The Use of Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health (2001): A Review of Implementation Experiences in the Developing Countries

Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health (2001) recognized the difficulty of some WTO member states in using the compulsory licensing flexibility allowed in the TRIPS Agreement due to their lack of local pharmaceutical manufacturing capacities. However, there has been almost no implementation by countries of the subsequent WTO General Council decision of 30th August, 2003 which was designed to resolve this Paragraph 6 issue. This is due to the existence of various impediments – generally in the form of external and internal barriers. A comparative analysis is undertaken of the implementation of the Council Decision in two countries with varying levels of development and with different obligations with regards to enforcement of the TRIPS Agreement. It is shown that external barriers such as proliferation of bilateral agreements have more impeding effect on developing countries such as South Africa which are already part of the full TRIPS compliance regime. Conversely, internal barriers such as institutional and structural drawbacks have more of an impact in Least Developing Countries (LDCs) such as Bangladesh which have been given a transition period for TRIPS compliance and are not yet fully susceptible to external pressures of the international trade regime. The increased preference of countries to use alternative innovative mechanisms such as the Medicines Patent Pool to improve access to medicine outside the framework of the global IP/Trade regime reiterates the unworkability of the Council Decision in promoting access to medicines.

Geographical Indications and Socio-Economic Development

Over the past few decades, geographical indications have become major intellectual assets in relation to a variety of goods, acting not only as a tool for protecting consumer’s interests and reinforcing confidence in high-quality and local products, but also as a legal and economic tool for the development of rural areas and the preservation of cultural heritage.Geographical indications are also a global issue, regulated in international law by the WTO and attracting increasing attention world-wide. Indeed, geographical indications have been said to be “the Sleeping Beauty of the intellectual property world” as although they have been around for a long time, there has been a widespread awakening in recent years, as to their business value. In particular, many developing countries have recently jumped on the wagon of the geographical indication culture, by associating products with their places of origin and developing external markets for some of these local products.This paper will examine the relevance of geographical indications for the economy of developing countries. In doing so, it will start by examining the standard of protection that should be granted to geographical indications by WTO Member States. It will then move on to analyse two issues that are relevant to developing countries. The first is the possibility of using geographical indications to protect indigenous knowledge and reward the holders of that knowledge. The second and related issue is the use of geographical indications as a development tool. In particular, it will question whether the assumption that the success story of geographical indications in Europe can be replicated in developing countries is realistic. Throughout the paper, these issues will be explored through reference to case studies drawn from developing countries.

Unordnung in der internationalen Handelsordnung: Befunde, Gründe, Auswirkungen und Therapien

Abstract: In the past, many WTO member states have liberalized their trade policies unilaterally. However, they were decreasingly prepared to guarantee these measures multilaterally, that is to “bind” themselves. This paper analyzes the background of this development by resorting to three political economy arguments pro multilateral binding: the terms of trade externality argument, the “tying hand” argument, that is to protect a government which is prone to liberalize against domestic lobby groups, and finally the argument that trade policies are instruments for general political targets. For all three arguments, it is shown why an important driving force of mercantilistically motivated trade negotiations has become weaker: the reciprocity requirement. The paper recommends narrower negotiation issues and mandates to prevent a further rising heterogeneity of issues and negotiation partners.

Analysis of Article 27(3) (b) of TRIPs-the Content and Implications of the IP Protection on Plant Varieties

Problem statement: Introduction of Intellectual Property Protection (IPP) to plant varieties has gone through some rough weather with objections being made not only with respect to their introduction but also with the type of protection to be accorded to the new varieties. Article 27(3)(b) of the TRIPs Agreement contains a lot of flexibilities as it allows WTO member states to choose the form of intellectual property protection and also the strength of IP protection. However, one of the primary effects of the provision is that it has forced a good number of the nations across the world to accord IPP to plant varieties where there existed none. The primary rationale given for the introduction of IPP in biotechnology is that it shall incentivise research in biotechnology which in turn shall help nations in building its food security. Conclusion: The study seeks to show that though the rationale has stood true to a good extent (as a lot of new plant varieties have been created by plant breeders in the past few decades that carry special traits resulting in an increase in the agricultural output and the quality of the produce). However, the research in plant varieties is often restricted to only a few crops that are commercially the most viable, hence, showing no change in the pattern of investment in the plant varieties even after the introduction of IPP. Moreover, after the introduction of Article 27(3) (b) (according of IPP to plant varieties and limiting the scope of imitation) there has seen large scale concentration and restructuring of the seeds industry all across the world. Further, the gradual substitution of traditional varieties by the modified plant varieties has also surfaced a whole host of other economic and environmental problems. These problems and holes in the incentive rationale thus justifies the counter measures taken by many nations such as farmer’s rights, origin disclosure requirements, incentivizing the use of traditional varieties by farmers, creation of seed’s banks, free exchange of germplasm.

PREFERENTIAL TRADE AGREEMENTS AND THE SCOPE OF GATT ARTICLE XXIV, GATS ARTICLE V AND THE ENABLING CLAUSE: AN APPRAISAL OF GATT/WTO JURISPRUDENCE

Despite being contradictory to the World Trade Organisation's (WTO) core objective of freer trade, its rules permits execution of preferential trade agreements (PTAs) provided certain conditions are complied with. WTO mechanism to oversee compliance of these conditions on PTAs is continuously evolving from somewhat tentative approach of earlier General Agreement on Tariffs and Trade (GATT) Panels to more willingness of active judicial interpretation by WTO Dispute Settlement Body (DSB). This article critically analyses the WTO provisions on PTAs taking into account the reports of GATT panels and WTO. It also sheds light on WTO member states views on controversial and hazy issues of the GATT/WTO jurisprudence on PTAs. The article in its concluding part suggests several recommendations designed to ensure greater compliance of the PTAs with rules of the WTO.

WTO Rights and Human Rights in the WTO Arbitration (WTO-Rechte und Menschenrechte im WTO-Schiedsverfahren)

This article deals with the question whether the WTO Dispute Settlement Body has the freedom or even the obligation to consider human rights as applicable law beside WTO law within a dispute settlement or whether the Dispute Settlement Body is restricted only to law covered by the WTO agreement. It is worked out that due to the fact that the WTO member states are also members of the UN and have also signed numerous human rights treaties, the Dispute Settlement Body has the right to consult also human rights in order to create conformity within the legal system. This point of view is also supported by several articles of the WTO Dispute Settlement Understanding.

Access to Medicines, BRICS Alliances, and Collective Action

On December 6, 2005, shortly before the World Trade Organization (“WTO”) Ministerial Conference in Hong Kong, WTO member states agreed to accept a protocol of amendment to the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPs Agreement”). This amendment sought to provide a permanent solution to implement paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health (“Doha Declaration”). If ratified, the new article 31bis of the TRIPs Agreement will allow countries with insufficient or no manufacturing capacity to import generic versions of on-patent pharmaceuticals.To facilitate the supply of essential medicines to countries with insufficient or no manufacturing capacity, article 31bis(3) creates a special arrangement not only for the affected countries, but also for those belonging to a regional trade agreement. Such an arrangement allows less developed countries to aggregate their markets to generate the purchasing power needed to make the development of an indigenous pharmaceutical industry attractive.

GATT/WTO and MEAs: Resolving the competing paradigm

Although free trade law and environmental law especially contained in multi lateral environmental agreements (MEAs) are more or less compatible, however, some twenty MEAs might create a conflicting situation with the GATT/WTO regime. Efforts through CTESS are being made to make the two regimes compatible with each other. But an amicable solution towards harmonizing them still seems to be far. It is said that if all WTO Member states have the political will to agree to one suggestion, the problem can be solved. But due to politicization of the WTO, a common view is difficult to be reached. It is true that all states want protection of the environment. It is evident from the fact that many MEAs have relatively a large number of members, and their member states are sincerely working on enforcing treaty norms contained in them. But when it comes to a conflict situation with international trade, differences among them becomes eminent. In spite of this, an optimistic view that the two regimes can be made complementary to each other is still being given importance. It is for this reason that states are forwarding their suggestions to the CTESS and the discussion is being carried forward on those suggestions. The paper critically examines the reality of ‘conflict or congruity’ between free trade law and environmental law, evaluates various suggestions to make the two regimes compatible with each other, and offers one suggestion that can bring about harmony and will be viable.

The Constitutions of the WTO

Constitutions have many dimensions. These dimensions include at least the following: an economic constitution in the sense of a set of rules for transactions in and institutionalization of authority; an interfunctional constitution that allows for the integration of various social values; a political constitution that reflects the cultural and democratic integrity of a group of people; a legal and judicial constitution that provides rules for the making of other rules, and for determining supremacy and the scope of judicial application of rules; a human rights constitution that limits the sphere of governmental authority, and a redistributive constitution founded on social solidarity. The WTO 'constitution' has already grown along some of these dimensions. As we assess the constitutional development of the WTO, we must first analyse these dimensions separately. Second, we must examine how these dimensions relate to one another. Third, we must examine how these dimensions of the WTO 'constitution' relate to the general international legal system's constitution and to the constitutions of other international organizations. Fourth, we must examine how these dimensions of the WTO 'constitution' relate to the domestic constitutions of the WTO's member states. Finally, we must examine the 'tertiary' rules that relate these different constitutions to one another.

WTO Obligations as Collective

One view of obligations under the WTO Agreement is that they are bilateral, that is, they involve legal obligations between two countries. This is premised on the idea that the object of WTO obligations is 'trade'. According to this view, the WTO Agreement can be considered a 'bundle of bilateral relations' and WTO obligations should be analysed pursuant to rules concerning bilateral obligations under the Vienna Convention on the Law of Treaties and the Articles on State Responsibility. This article takes a different position. It posits that WTO obligations are more appropriately regarded as collective because their principal object is the protection of collective expectations about the trade-related behaviour of governments. These form a common interest over and above the interests of WTO Member States individually. At the same time, while expectations may be the treaty's primary concern, they are not its sole concern. The treaty gives some flexibility to governments to deal with situations actually encountered in the pattern of trade. These two functions - the protection of expectations and the adjustment to realities - combine to produce law in a third mode, something that can be termed a law of interdependence. This is the tendency of the WTO Agreement to promote interaction among producers and consumers in different countries, and thereby to spin an indissoluble web of economic relations that goes beyond the interests of WTO Members individually. For this reason, the WTO Agreement can be thought of as a collective undertaking and WTO obligations are more appropriately analysed under VCLT and ASR rules on collective obligations.

From Seattle to Hong Kong: Are We Getting Anywhere?

With agricultural trade negotiations deadlocked, the Doha round of trade talks may appear dead in the water. But every round of trade talks in recent memory has oscillated between near breakthroughs and near breakdowns. Trade negotiations can be like a ride on a roller coaster but, while the roller coaster returns to where it started, multilateral trade negotiations have generally gone on to close successfully. Will this happen with the Doha round? Surprisingly, the answer is yes. Prospects for concluding the round in Hong Kong next month, at the World Trade Organization Ministerial meeting, are indeed bleak; but not the prospects for finishing later. While the initial attempt to launch the WTO's first round of multilateral trade negotiations in Seattle in November 1999 collapsed, the round was finally launched in Doha, Qatar, two years later, with reaffirmation of the twin virtues of democracy and openness to the world economy. While there was a lot of dissent in September 2003 at the next WTO meeting in Cancun, which also collapsed because of the lack of consensus especially on agricultural liberalization, there were nonetheless some important accomplishments in the tabling of most of the “Singapore issues” and an agreement to relax the TRIPS Agreement to permit developing country access to low-cost pharmaceuticals. Cancun was also a turning point insofar as the major developing countries coalesced in the Group of 20 to provide greater balance in the WTO membership and the design of the negotiating agenda. While it appears that agricultural liberalization is still a significant stumbling block facing the Hong Kong Ministerial, it is likely that the EU can be squeezed if there are reciprocal offers in manufactures and services that are forthcoming especially from some of the major developing countries that can be induced to liberalize in their own interests. It will also be helpful if a program of adjustment assistance can be devised in the form of “aid for trade” especially for low-income countries. The outlines of a deal to close the Doha Round are therefore clear. With forceful leadership on the part of Pascal Lamy to rescue the Doha Round in Hong Kong and to convince the WTO member states to follow with an extraordinary meeting within six months, it should be possible to take the penultimate steps to bring the Doha Round to a final conclusion by the end of 2006 and to obtain its approval by early 2007 before the U.S. fast-track negotiating authority expires. Jagdish Bhagwati is Senior Fellow in International Economics at the Council on Foreign Relations and University Professor, Economics and Law at Columbia University. He was Economic Policy Adviser to the Director General of GATT and of the WTO-appointed expert group that recently reported on The Future of the WTO. He is currently a member of the Eminent Persons Panel on Enhancing UNCTAD’s Impact and of UN Secretary General Kofi Annan’s Advisory Group on the NEPAD process in Africa. His latest books are Free Trade Today (Princeton, 2002) and In Defense of Globalization (Oxford, 2004).