Abstract
By providing a detailed analysis of how Japan has dealt with Free Trade Agreements (FTA) in general and from an intellectual property (IP) perspective, the author identifies the followings: (1) the initiative to conclude FTAs did not initially come from the industry, but from foreign governments, a move to which the Government reacted; (2) bilateralism and multilateralism are not inconsistent but both indispensable instrument for Japan and it is the key how to balance between the two; (3) bilateral or regional FTAs may function effectively to facilitate the domestic structural reform, in particular to more open agricultural trade policies in Japan; and (4) in light of IP aspects, an increase to TRIPS-plus under FTAs would effectively increase the multinational consensus, and FTAs may be an effective instrument to facilitate the domestic reform necessary to be in compliance with the multinational agreements even for Japan, as, in my view, still a partly developed, partly developing country.
N. Ono: Ph.D. in Law (Hitotsubashi University Graduate School of Law), LL.M. (Georgetown University Law Center), MGA (University of Pennsylvania). Presently, the author is an Associate at Lerner David Littenberg Krumholz & Mentlik LLP and a Senior Researcher at the University of Tokyo Policy Alternative Research Institute.
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Notes
- 1.
Before the election, the manifesto included an undertaking that it would ‘conclude’ an FTA with the United States (US). However, in response to the growing criticism, primarily from agricultural communities (a major voting constituency for the LDP), the DPJ changed the phrase from ‘conclude’ to ‘promote liberalization of trade and investment through the conclusion of a free trade agreement (FTA) with US. The measures will not include any which are detrimental to the safety and stable supply of food, increasing Japan’s food self-sufficiency ratio, and the development of Japan’s agricultural industry and its farming villages.’ Democratic Party of Japan (DPJ) (2009).
- 2.
Trans-Pacific Partnership (TPP), officially the Trans-Pacific Strategic Partnership Agreement which was initially signed by Brunei, Chile, New Zealand and Singapore in 2005 (effective 2006).
- 3.
Press conference 2013.
- 4.
The US concluded its first FTA (with Israel) in 1985, followed by the North Atlantic Free Trade Agreement (with Canada and Mexico) in 1994, and by 2009 had FTAs in place with 17 countries (and a further 3 under negotiation): United States Trade Representative (2010). With respect to the EU, the Treaty of Rome was concluded in 1957 to create the European Economic Community (EEC), later the European Community (since the Maastricht Treaty of 1993), and finally the European Union. The European Union has expanded its membership to 27 states. The European Commission (which proposes legislation for the European Parliament and the EU Council) also represents the EU’s interests in trade policy matters. It comprises 27 Commissioners and plays a key role in relation to FTAs. The EU’s first FTA (with Switzerland) was concluded in 1973: EU Trade: European Commission (2011).
- 5.
See e.g., Onoue (2006), Sekizawa (2008), Urata and Okabe (2010), Ando (2009), Takahashi and Urata (2009), and Kobayashi (2007).
In regard to IP aspects, Yamaguchi discusses the IP aspects of Japanese FTAs but before the conclusion of the Japan-Switzerland EPA: Yamaguchi (2008), p. 55. Other articles focus more on IP strategies in FTAs by other countries, e.g. Suzuki (2004, 2005a, b) and Omachi 2007.
- 6.
Ministry of Foreign Affairs (2009).
- 7.
The Government also appears to recognize the common use of FTA: Ministry of Foreign Affairs (general).
- 8.
ASEAN is comprised of 10 member states: Brunei Darussalam, Cambodia, Indonesia, Lao PDR, Malaysia, Myanmar, Philippines, Singapore, Thailand and Viet Nam.
- 9.
- 10.
Joint Press Conference (2009).
- 11.
In March 2013, the first round of negotiations was held. Ministry of Foreign Affairs (2013). Prior to it, the fifth round of Trilateral Summit Meeting was held in May 2012. Ministry of Foreign Affairs (2012).
- 12.
Ministry of Foreign Affairs (Peru) .
- 13.
Ministry of Foreign Affairs (general).
- 14.
The GCC is composed of six member states, i.e. the Kingdom of Bahrain, the State of Kuwait, the Sultanate of Oman, the State of Qatar, the Kingdom of Saudi Arabia, and the United Arab Emirates.
- 15.
Ministry of Foreign Affairs (general).
- 16.
Ministry of Foreign Affairs (Canada).
- 17.
Ministry of Foreign Affairs (Mongolia).
- 18.
EU Trade: European Commission (2013).
- 19.
Urata (2009).
- 20.
Ibid.
- 21.
ASEAN Official site http://www.aseansec.org/26744.htm. Accessed 30 April 2014.
- 22.
Ministry of Foreign Affairs (2012).
- 23.
It is based on the statistics of the simple average figures for tariff rates (the US, 3.6 %; the European Union, 4.1 %; China, 10 %; Malaysia, 14.5 %; the Republic of Korea, 16.1 %; the Philippines, 25.6 %; and Indonesia, 37.5 %): Economic Affairs Bureau of the Ministry of Foreign Affairs (EAB MOFA) (2002).
- 24.
Ibid.
- 25.
Ibid.
- 26.
APEC is comprised of ASEAN countries (see list, n. 7 above), and Japan, the ROK, China, Chinese Taipei, Chinese Hong Kong, Mexico, Papua New Guinea, Australia, New Zealand, the US, Canada, Peru, Chile and Russia.
- 27.
Sekizawa (2008), pp. 8, 21–32.
- 28.
Council of Ministers on the Promotion of Economic Partnership (CMPEP) (2004).
- 29.
EAB MOFA (2002).
- 30.
Council of Ministers on the Promotions of Economic Partnership (CMPEP) (2004).
- 31.
Ibid [2].
- 32.
EAB MOFA (2002).
- 33.
Ibid.
- 34.
Ibid [2](2).
- 35.
Ibid [2].
- 36.
- 37.
Japan Business Federation website: Nippon Keidanren, Call for the start of negotiations on Japan-EU Economic Integration Agreement – Third proposal for Japan-EU Economic Partnership Agreement. 17 November 2009 http://www.keidanren.or.jp/english/policy/2009/099.html Accessed 30 April 2014.
- 38.
Sekizawa (2008) based his opinion on his experience in this matter while employed at the Ministry of Economy, Trade and Industry (METI) and on follow-up interviews.
- 39.
Sekizawa (2008), pp. 41–42.
- 40.
Ibid, pp. 42–44.
- 41.
Speech by the Prime Minister of Japan Junichiro Koizumi. Japan and ASEAN in East Asia – A sincere and open partnership (2002).
- 42.
Mexico chose companies of FTA countries to the extent the bidding price was 10 % higher than those of non-FTA countries: Sekizawa (2008), p. 50.
- 43.
Sekizawa (2008), p. 50.
- 44.
Japan-Mexico Joint Study Group on the Strengthening of Bilateral Economic Relations, Final Report (2002).
- 45.
Sekizawa (2008), pp. 45–47.
- 46.
According to Japan Trade Statistics, in 2002, trade between Thailand and Japan totaled JPY 2.85 trillion. It also shows that in 2001, 74 % of exports from Thailand to Japan consisted of industrial goods, with the remaining 26 % being agricultural, forestry and fishery items. Japan-Thailand Economic Partnership Agreement Task Force Report (2003).
- 47.
Sekizawa (2008), p. 80.
- 48.
Ibid. pp. 80–90. Sekizawa sees the Japan-Thailand EPA as an example of where foreign government pressure did not work. However, the consistent push by the Thai government seems to have been indispensable.
- 49.
For example, the Japan-Mexico FTA has one article about intellectual property rights under the chapter on ‘Investment’ (see Article 73).
- 50.
Joint Statement on the signing of the Agreement between Japan and the United Mexican States for the strengthening of the Economic Partnership (2004).
- 51.
Strasbourg Agreement Concerning the International Patent Classification.
- 52.
Nice Agreement Concerning the International Classification of Goods and Services for Purposes of the Registration of Marks.
- 53.
JPO website
www.jpo.go.jp/shiryou/toushin/chousa/pdf/tripschousahoukoku/h20_3_1_japan_swiss_kyoutei_hogo.pdf [Japanese]. Accessed 30 April 2014. For English language documents, including the FTA and preceding negotiations and subsequent meetings, see Ministry of Foreign Affairs (Switzerland).
- 54.
Patent Law Treaty (to harmonize and streamline formal procedures in respect of national and regional patent applications and patents).
- 55.
Singapore Treaty on the Law of Trademarks.
- 56.
Hague Agreement Concerning the International Registration of Industrial Designs.
- 57.
Report of the Working Group on the New Types of Marks. October 2009 [in Japanese].
- 58.
Performances and Phonograms Treaty (WPPT).
- 59.
Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organization.
- 60.
The 13 concluded are those with Singapore, Mexico, Chile, Thailand, Indonesia, Brunei, ASEAN, Philippines, Switzerland, Viet Nam, India and Peru; the 10 currently being negotiated (including unsigned) are with Australia, the GCC, the ROK, Mongolia, Canada, Japan-China-ROK, RCEAP, Colombia, EU, and Turkey. Ministry of Foreign Affairs (general).
- 61.
Ministry of Finance, Trade Statistics of Japan (until 2008).
- 62.
Note: the ROK has relatively similar IP laws to those of Japanese. The US-ROK FTA information including text is available at the Office of US Trade Representative official website http://www.ustr.gov/trade-agreements/free-trade-agreements/korus-fta. Accessed April 30, 2013.
- 63.
While the total trade decreased by 3.2 % in the 12 months since the effective date and the US increased its trade deficit against the ROK, the US increased its FTA-related trade by 4.1 % and ROK increased its by 10.4 %. Josh Mitchell, Outcomes vary: One year from when the US-ROK FTA entered into force, The Wall Street Journal (Japan) 15 April 2013 http://jp.wsj.com/article/SB10001424127887323846104578423931451929910.html#articleTabs%3Darticle [Japanese]. Accessed 30 April 2014.
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Acknowledgment
The opinions expressed herein are those of the author and do not represent the positions of the firm or any of its clients. Special thanks are owed to Kunihiko Fushimi, Keisuke Shimizu and Shozo Uemura. Individuals acknowledged here did not necessarily agree with the views expressed in this article nor is anyone but the author responsible for errors that might occur herein. The author quotes any public records available in English as such, unless otherwise noted.
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Ono, N. (2015). Japan’s Approach to FTAs and IP. In: Antons, C., Hilty, R. (eds) Intellectual Property and Free Trade Agreements in the Asia-Pacific Region. MPI Studies on Intellectual Property and Competition Law, vol 24. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-30888-8_8
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