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Netherlands Yearbook of International Law 2017 pp 57–107Cite as

From TRIPS to FTAs and Back: Re-Conceptualising the Role of a Multilateral IP Framework in a TRIPS-Plus World

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Part of the book series: Netherlands Yearbook of International Law ((NYIL,volume 48))

Abstract

International intellectual property (IP) protection is increasingly governed by a network of bilateral and regional treaties. Most of these contain obligations on the protection and enforcement of IP that set significantly higher standards than those of the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), commonly referred to as ‘TRIPS-plus’. Human rights bodies, non-governmental organisations (NGOs), and academic commentators often criticise these standards for undermining flexibilities available under TRIPS. Such policy space, however, is critical to design national IP laws in accordance with domestic needs. This chapter makes a case for the continued relevance of the TRIPS Agreement as an overarching, multilateral framework. My argument is based on the role treaty law affords to the object and purpose expressed in Articles 7 and 8 TRIPS. They have not only been recognised as essential for promoting access to medicines in the Doha Declaration on TRIPS and Public Health. As integral objectives and principles of TRIPS, Articles 7 and 8 limit the ability of World Trade Organization (WTO) Members to modify their IP-related treaty obligations inter se. Based on their negotiation history and common understandings expressed by WTO Members, I argue for an enhanced role of TRIPS’ object and purpose as a loose constitutional frame for IP commitments in bilateral and regional treaties.

Reader in International and European Intellectual Property Law, King’s College - University of Cambridge; External Research Fellow at the Max Planck Institute for Innovation and Competition (Munich). I owe thanks to my colleagues at the Lauterpacht Centre for International Law at Cambridge, to the participants of the IP Forum at Queen Mary University of London, and to the two anonymous reviewers, for their comments and suggestions. Of course, all errors remain mine.

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Notes

  1. 1.

    1994 Marrakesh Agreement Establishing the World Trade Organization, 1867 UNTS 154 (‘WTO Agreement’); 1994 Agreement on Trade Related Aspects of Intellectual Property Rights, 1869 UNTS 299 (‘TRIPS Agreement’). For a consideration of the changing role of IP protection in international law see, for example, Dreyfuss and Frankel 2015.

  2. 2.

    1883 Paris Convention on the Protection of Industrial Property, 828 UNTS 306 (‘PC’); 1886 Berne Convention on the Protection of Literary and Artistic Works, 1161 UNTS 30 (‘BC’).

  3. 3.

    TRIPS Agreement, Preamble.

  4. 4.

    Ibid.

  5. 5.

    See for example United States of America: Constitution, USA-010, Article I, Section 8, Clause 8, which empowers the United States Congress ‘[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries’ (emphasis added). Arguments for enhancing welfare, or more specifically fostering advances in technology, science, and cultural productions through incentives based on IP rights, are often explicit or implicit in IP legislation—see for example Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, OJ L 167/10, recital 4. For a comprehensive discussion on various justifications (and in favour of an instrumentalist, utilitarian approach), see Drahos 2016; Fisher 2001 (who takes a fresh look at four central approaches, identifying core flaws in all of them as all-embracing justifications). See also Hughes 1988; Spence 2002. Of course, the difficulty with a utilitarian approach is to in fact determine a causal link between a particular form and level of IP protection and welfare gains—but this is exactly why Sect. 3.3 argues that such determinations can, if at all, only be made context-specific and should be left, as much as possible, to domestic decision-makers.

  6. 6.

    WTO, Doha Declaration on the TRIPS Agreement and Public Health, WT/MIN(01)/DEC/2, 20 November 2001 (‘Doha Declaration’).

  7. 7.

    See for example 1996 WIPO Copyright Treaty, 2186 UNTS 121 (‘WCT’) and more recently, for example, 2013 Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or Otherwise Print Disabled, TRT/MARRAKESH/001 (‘Marrakesh Treaty’).

  8. 8.

    On the notion of ‘regime shifting’ in international IP law, see generally Helfer 2004; Raustiala 2006.

  9. 9.

    See the WTO website on what it defines as ‘regional trade agreements’ (WTO (2017) Regional Trade Agreements, http://www.wto.org/english/tratop_e/region_e/region_e.htm, accessed 17 September 2017).

  10. 10.

    Grosse Ruse-Khan et al. 2013, at 878.

  11. 11.

    See WIPO (2017) Treaty Secretariat: IP-Relevant Bilateral, http://www.wipo.int/wipolex/en/treaties/index_bilateral.jsp, accessed 17 September 2017.

  12. 12.

    See 1994 General Agreement on Tariffs and Trade 1994, 1867 UNTS 190 (‘GATT’), Articles I and XXIV.

  13. 13.

    On the concept of preference erosion, see generally Hoekman et al. 2006.

  14. 14.

    Grosse Ruse-Khan 2016, Chapter 10.

  15. 15.

    See for example WCT, Articles 4–5, 8 and 11–12; WIPO, Agreed Statements Concerning the WIPO Copyright Treaty, TRT/WCT/002, 20 December 1996, Concerning Articles 1(4) and 10.

  16. 16.

    See Grosse Ruse-Khan et al. 2013, at 878.

  17. 17.

    See the ‘notice and take-down’ approach in the United States Digital Millennium Copyright Act, Pub. L. 105–304 (‘DMCA’); the limitations on liability of Internet Service Providers (ISPs) in Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market, OJ L 178/1 (‘Directive on Electronic Commerce’), Articles 12–15; the respective ‘transplants’ of these approaches in EU and US FTAs, such as the 2010 US-Korea Free Trade Agreement (‘US-Korea FTA’), https://ustr.gov/trade-agreements/free-trade-agreements/korus-fta/final-text, accessed 1 November 2017, Chapter 18, Confirmation Letter (Limitations on Liability for Internet Service Providers); to a lesser extent, European Commission (2015) EU-Singapore Free Trade Agreement, updated May 2015 (‘EU-Singapore FTA’), http://trade.ec.europa.eu/doclib/docs/2013/september/tradoc_151761.pdf, accessed 1 November 2017, Article 11.47.

  18. 18.

    See generally Grosse Ruse-Khan et al. 2013, at 878.

  19. 19.

    Terms in TRIPS provisions such as legitimate interests, unreasonable prejudice, discrimination, and unjustifiable often involve constructive ambiguity, opting for a meaning that is broad and ambiguous enough to allow all sides to agree, thereby essentially providing flexibility in their implementation and leaving contested issues to be resolved at a later stage, for example in dispute settlement proceedings, or allowing diverging approaches in domestic implementation (see generally Grosse Ruse-Khan 2007, at 475).

  20. 20.

    On Article 8 TRIPS, see for example Gervais 2012, at 238; Blakeney 1996, para 3.09; ICTSD and UNCTAD 2005, at 126; Yusuf 1998, at 13; Ganesan 2015, at 221; Correa 2007, at 108. On Article 7 TRIPS, see Slade 2011, at 414; Pires de Carvalho 2014, at 164–165 and 191–192; Correa 2007, at 99–103; ICTSD and UNCTAD 2005, at 131–132; Malbon et al. 2014, at 194–195.

  21. 21.

    At the time of writing, the Panel Report in the dispute over Australia’s plain packaging measures—which, based on the arguments made by the parties, is likely to involve a significant discussion on Articles 7 and 8—had not yet been released to the public. For a detailed discussion on the application of these provisions in earlier TRIPS disputes, see Grosse Ruse-Khan 2011a.

  22. 22.

    See 1969 Vienna Convention on the Law of Treaties, 115 UNTS 331 (‘VCLT’), Articles 31–33.

  23. 23.

    TRIPS Agreement, Article 7 (emphasis added).

  24. 24.

    The emphasis on innovation incentives and technology transfer implies (for historical reasons explained below) a strong focus on patents and other rights vesting in technology—while especially the objectives of trademark protection and most traditional aspects of copyright protection are not explicitly addressed.

  25. 25.

    TRIPS Agreement, Article 8(1) (emphasis added).

  26. 26.

    Ibid., Article 8(2).

  27. 27.

    See Multilateral Trade Negotiations the Uruguay Round, Communication from India: Applicability of the Basic Principles of the GATT and of Relevant International Intellectual Property Conventions, MTN.GNG/NG11/W/39, 5 September 1989, paras 13–14.

  28. 28.

    Ibid., para 13 (emphasis added). As an example for such a balance, the communication refers to Article 5(A) PC and the ability for compulsory licensing of patents in cases of abuse.

  29. 29.

    See Multilateral Trade Negotiations the Uruguay Round, Communication from Argentina, Brazil, Chile, China, Colombia Cuba, Egypt, India, Nigeria, Peru, Tanzania and Uruguay: Applicability of the Basic Principles of the GATT and of Relevant International Intellectual Property Conventions, MTN.GNG/NG11/W/71, 14 May 1990. The text therein was later endorsed by two other developing countries, Pakistan and Zimbabwe. It became known as the ‘developing countries’ proposal’ (see Gervais 2012, at 20).

  30. 30.

    Gervais 2012, at 7. See also Multilateral Trade Negotiations the Uruguay Round, Communication from Argentina, Brazil, Chile, China, Colombia Cuba, Egypt, India, Nigeria, Peru, Tanzania and Uruguay, 1990, Articles 1(3)–(4).

  31. 31.

    Multilateral Trade Negotiations the Uruguay Round, Chairman’s Report to the GNG: Status of Work in the Negotiating Group, MTN.GNG/NG11/W/76, 23 July 1990, at 9–10, paras 8B.1 and 8B.3. The draft was first circulated on 12 June 1990 under the chair’s sole responsibility; its official version then appeared in July 1990. On this and the overall TRIPS negotiating history and the pivotal role of this draft, see Gervais 2012, at 11–31.

  32. 32.

    See Gervais 2012, at 228–229.

  33. 33.

    Multilateral Trade Negotiations the Uruguay Round, Communication from India, 1989, para 14. As discussed above, the idea for a ‘balance of rights and obligations’ of IP owners arguably served as input to the identical language now found in Article 7 TRIPS.

  34. 34.

    Ibid. For a discussion on related submissions (again from India) which further refer to the need to balance IP and public interests, see ICTSD and UNCTAD 2005, at 121–122; Ganesan 2015, at 221.

  35. 35.

    Philip Morris v Oriental Republic of Uruguay, ICSID, Award, Case No. ARB/10/7, 8 July 2016 (‘Philip Morris v Uruguay’), paras 287–306; Técnicas Medioambientales Tecmed, S.A. v The United Mexican States, ICSID, Award, Case No. ARB (AF)/00/2, May 29, 2003, para 119; Saluka Investments B.V. v The Czech Republic, UNCITRAL, Partial Award, IIC 210, 17 March 2006, paras 255, 260 and 262; Methanex Corporation v United States of America, UNCITRAL, Final Award, IIC 167, 3 August 2005, Part IV, Chapter D, para 7; see also OECD 2004, at 5; American Law Institute 1987, at 712, comment (g).

  36. 36.

    Yusuf 1998, at 12–13; Ganesan 2015, at 226.

  37. 37.

    In light of the significant similarities between the 1989 proposal by India and the first developing country draft, it appears very likely that the term ‘principles’ had simply been carried over from India’s reference to public interest primacy as a principle that allows to override IP protections.

  38. 38.

    Multilateral Trade Negotiations the Uruguay Round, Communication from Argentina, Brazil, Chile, China, Colombia Cuba, Egypt, India, Nigeria, Peru, Tanzania and Uruguay, 1990, at 7 (emphasis added).

  39. 39.

    Multilateral Trade Negotiations the Uruguay Round, Chairman’s Report to the GNG: Status of Work in the Negotiating Group, 1990, at 9–10.

  40. 40.

    See Gervais 2012, at 236–237.

  41. 41.

    The account of the Brazilian negotiator, Piragibe dos Santos Tarragô, suggests that while Articles 7 and 8 were overall concessions made by developed countries, the ‘demandeurs’ of TRIPS ‘made sure that the eventual measures taken under national legislations, in the light of those objectives and principles, should be consistent with the provisions of the TRIPS Agreement’ (see Tarragô 2015, at 250).

  42. 42.

    Multilateral Trade Negotiations the Uruguay Round, Draft Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, MTN.TNC/W/35/REV.1, 3 December 1990 (‘Brussels Draft’).

  43. 43.

    Ibid., at 200 (emphasis added).

  44. 44.

    See Pires de Carvalho 2014, at 164–165 and 191–192; Ganesan 2015, at 221.

  45. 45.

    See TRIPS Agreement, Preamble.

  46. 46.

    Ibid., Article 7.

  47. 47.

    See Multilateral Trade Negotiations the Uruguay Round, Communication from India, 1989, para 13. The subsequent developing country draft actually contained an Article 5 which was entitled ‘Rights and Obligations of Patent Owners’ and contained a list of both rights (for example to prevent others from working the invention and to license its use) and obligations (for example to disclose the invention and work it in the territory of the granting state) of patent owners (see Multilateral Trade Negotiations the Uruguay Round, Communication from Argentina, Brazil, Chile, China, Colombia Cuba, Egypt, India, Nigeria, Peru, Tanzania and Uruguay, 1990, at 8–9 and the discussion by Ganesan 2015, at 221–222).

  48. 48.

    Pires de Carvalho 2014, at 192; Correa 2007, at 92–93; ICTSD and UNCTAD 2005, at 119. A list of examples for the fears expressed over strengthening IP protection and the need for strong limits as well as obligations imposed on IP owners can be found in Multilateral Trade Negotiations the Uruguay Round, Submission from Brazil, MTN.GNG/NG11/W/30, 31 October 1988.

  49. 49.

    A notable exception is the disclosure requirement in Article 29 TRIPS—which however does oblige WTO Members to require the applicant to disclose the ‘best mode for carrying out the invention’ (as proposed by developing countries).

  50. 50.

    See Ganesan 2015, at 221–226; Tarragô 2015, at 250; generally on political bargains and pressure in the negotiations, Sell 2003, at 108–120. Given that Article 8(1) has received a significant qualification in form of the TRIPS consistency test, Article 7 probably embodies the main victory among those TRIPS provisions where developing countries appeared as demandeurs.

  51. 51.

    Correa 2007, at 92 argues that since promoting socio-economic goals and the idea of balance well accepted in WTO law (as expressed for example in the notion of sustainable development in the Preamble to the WTO Agreement), Article 7 is of key relevance for all IP rights. The Preamble to the WCT and the Preamble to the Marrakesh Treaty further support these concepts as general principles in IP law.

  52. 52.

    See for example Gervais 2012, at 238; ICTSD and UNCTAD 2005, at 125–127; Yusuf 1998, at 13; Correa 2007, at 108.

  53. 53.

    European Communities – Protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuffs Geographical Indications, WTO, Panel Report, WT/DS/174R, 15 March 2005 (‘EC – GIs’), paras 7.205–207.

  54. 54.

    Ibid., para 7.210 (emphasis added).

  55. 55.

    See TRIPS Agreement, Articles 11, 14(1)–(3), 16(1), 23(1), 26(1), 28(1) and 39(2), which all oblige WTO Members to provide exclusive rights to ‘prevent’ third parties from using the protected subject matter in various ways.

  56. 56.

    See the discussion in Sect. 3.1.

  57. 57.

    Other forms of limiting the exclusivity conferred by IP rights are subject matter exclusions, setting thresholds for obtaining protection, constraining the scope of exclusive rights, and of course limiting the duration of these rights. TRIPS contains rules on most of these issues for most of the relevant IP rights.

  58. 58.

    Such as Articles 13, 17, 26(2), 30 and 31 TRIPS.

  59. 59.

    See VCLT, Article 31(1).

  60. 60.

    Doha Declaration.

  61. 61.

    WTO, Ministerial Declaration on the Doha Development Round, WT/MIN(01)/DEC/1, 20 November 2001.

  62. 62.

    In particular the Doha Declaration on TRIPS and Public Health is generally seen as a ‘subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions’ and is thereby considered, in the chapeau of Article 31(3) VCLT, equivalent to treaty ‘context’ as defined in Article 31(2) VCLT (Abbott 2002, at 491–492; generally Charnovitz 2002). For a view that classifies the Doha Declaration as (arguably even more important) ‘authoritative interpretation’ under Article IX(2) of the WTO Agreement, see Shanker 2002.

  63. 63.

    South Africa had enacted health reform laws (especially a newly introduced Section 15C of the Medicines and Related Substances Control Act) which allowed for compulsory licensing and parallel importation of patented drugs. In response, the US placed South Africa on its Special 301 Watch List and withdrew tariff preferences; while the Pharma lobby initiated litigation in South Africa, inter alia, invoking its right to property under Section 25 of the South African Constitution. The focus of attack in Brazil was its compulsory licensing legislation within the framework of its HIV/AIDS treatment programme, which the US challenged to be incompatible with TRIPS (see Brazil, Measures Affecting Patent Protection, WTO, Request for the Establishment of a Panel by the United States, WT/DS199/39, 9 January 2001). Due to public awareness campaigns and protests by various NGO, both cases ended in withdrawal of claims and a public relations disaster for Pharma, the US and others (such as the EU) who had favoured ‘patents over patients’. See Hestermeyer 2007, at 11–15; generally Varella 2004; Abbott 2002.

  64. 64.

    Ironically, it was an offer by CIPLA, an Indian Generic Drug Producer, to supply the US and Canada generic versions of Bayer’s Cipro drug that facilitated agreements between Bayer and the Canadian as well as the US Government for significantly lower prices for the anthrax treatment (see Hestermeyer 2007, at 16–17).

  65. 65.

    The main alternative in form of importing from other countries where the needed medication was not under patent protection was about to disappear as the transition period during which developing countries like India, the biggest producer of generic drugs and potential supplier for other developing countries, were exempted from granting product patent protection for pharmaceuticals was due to expire in January 2005. On the so-called ‘paragraph 6 system’, see generally Matthews 2004.

  66. 66.

    Doha Declaration.

  67. 67.

    Ibid.

  68. 68.

    WTO, Ministerial Declaration on the Doha Development Round, 2001, para 19.

  69. 69.

    Compare for example Philip Morris v Uruguay, paras 287–306 (and the further reference there provided).

  70. 70.

    United States – Import Prohibition of Certain Shrimp and Shrimp Products, WTO, Appellate Body Report, WT/DS58/AB/R, 12 October 1998 (‘US – Shrimp’), para 153 (emphasis added).

  71. 71.

    See generally Grosse Ruse-Khan 2010.

  72. 72.

    See the discussion in Howse 2000; Van Damme 2009.

  73. 73.

    US – Shrimp, para 114. In that case, sustainable development as one element of the multiple objectives of the WTO agreement guided the interpretation of the Article XX(g) GATT term ‘exhaustible natural resources’ to include the protection of living (but endangered) species such as sea turtles.

  74. 74.

    Doha Declaration, para 5(a).

  75. 75.

    See also Pires de Carvalho 2014, at 192.

  76. 76.

    See TRIPS Agreement, Articles 6, 9, 10, 13, 15–17, 20, 27, 30–31, 39, 40–42, 46 and 61.

  77. 77.

    1994 Understanding on Rules and Procedures Governing the Settlement of Disputes, 1869 UNTS 401 (‘DSU’), Article 3(2).

  78. 78.

    Ibid.

  79. 79.

    TRIPS Agreement, Article 1(1).

  80. 80.

    This issue has been discussed in particular in relation to Article 30 TRIPS: see Canada – Patent Protection of Pharmaceutical Products, WTO, Panel Report, WT/DS114/R, 17 March 2000 (‘Canada – Patents’), para 7.26; Correa 2007, at 101–102. While the EC contended that the balancing Article 7 calls for is already fully implemented in the individual provisions of TRIPS, Canada argued for that WTO Members retain policy space to conduct such balancing. The Panel itself tried to accommodate both views to some extent, but did not really resolve the issue.

  81. 81.

    ICTSD and UNCTAD 2005, at 126.

  82. 82.

    This in turn contradicts the principle effectiveness (effet utile) according to which words are in a treaty for a meaning and must be given effect. See United States – Standards for Reformulated and Conventional Gasoline, WTO, Appellate Body Report, WT/DS2/AB/R, 29 April 1996 (‘US – Gasoline’), at 21; Japan – Taxes on Alcoholic Beverages, WTO, Appellate Body Report, WT/DS8/AB/R, 4 October 1996, at 96–106; ICTSD and UNCTAD 2005, at 118–119.

  83. 83.

    See Sect. 3.3.2 above. It is worth noting that the Panel Report in Canada – Patents had been issued about a year before the Doha Declaration, and hence could not reflect the emphasis WTO Members placed on Article 7 (and 8) therein.

  84. 84.

    See the contributions in Kur and Mizaras 2011.

  85. 85.

    Elmahjub 2016, at 31–36; Commission on Intellectual Property Rights (2002) Integrating Intellectual Property Rights and Development Policy, September 2002, http://www.iprcommission.org/papers/pdfs/final_report/CIPRfullfinal.pdf, accessed 31 October 2017, at 18–20; Kumar 2002; Khan 2002.

  86. 86.

    See Gabčikovo-Nagymaros Project (Hungary v Slovakia), ICJ, Judgment, ICJ Reports 1997, 25 September 1997, para 140. See generally International Law Association, Declaration of Principles of International Law Related to Sustainable Development, UN Doc A/CONF.199/8, 9 August 2002; Cordonier Segger and Khalfan 2004, at 96–171.

  87. 87.

    See Grosse Ruse-Khan 2010.

  88. 88.

    Thomas Wälde notes that the beauty of the concept of sustainable development lies ‘in the fact that it is a “principle for all seasons”: it neither imposes insufferable deprivation of consumption on the present nor disregards the needs of the future. It encompasses humanity, but also nature. It appears to solve irresolvable contradictions. Everybody – from the liberal advocates of the global economy to fundamental environmentalists – can fill the concept with his/her meaning’ (see Wälde 2004, at 119) (emphasis added).

  89. 89.

    See Lowe 1999, at 23–24.

  90. 90.

    Boyle and Freestone 1999, at 16.

  91. 91.

    China – Measures Related to the Exportation of Rare Earths, Tungsten and Molybdenum, WTO, Panel Report, WT/DS431/R, 26 March 2014 (‘China – Rare Earths’), para 7.111.

  92. 92.

    In India – Patents, the Appellate Body took a clear stand against infusing the concept of legitimate expectations into treaty interpretation – unless the ordinary of the TRIPS terms, in their context, support such expectations (see India – Patent Protection for Pharmaceutical and Agricultural Chemical Products, WTO, Appellate Body Report, WT/DS50/AB/R, 19 December 1997 (‘India – Patents’), paras 32–41.

  93. 93.

    See the discussion in Sect. 3.2 and Grosse Ruse-Khan et al. 2013, at 878.

  94. 94.

    See UNESC Commission on Human Rights, The Impact of the Agreement on Trade Related Aspects of Intellectual Property Rights on Human Rights – Report of the High Commissioner, UN Doc E/CN.4/Sub.2/2001/13, 27 June 2001, paras 27–28; UNGA Human Rights Council, Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Anand Grover, UN Doc A/HRC/11/12, 31 March 2009, paras 68–93; generally Drahos 2003.

  95. 95.

    WHO (2006) Public Health, Innovation and Intellectual Property Rights, April 2006, http://www.who.int/intellectualproperty/documents/thereport/CIPIHReport23032006.pdf, accessed 30 October 2017, at 204.

  96. 96.

    WHO, Fifty-seventh World Health Assembly Resolution, Scaling up treatment and care within a coordinated and comprehensive response to HIV/AIDS, WHA57.14, 22 May 2004.

  97. 97.

    UNGA Human Rights Council, Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Anand Grover, 2009, para 96.

  98. 98.

    Ibid., para 108.

  99. 99.

    UNGA First Committee, Global health and foreign policy: health employment and economic growth, UN Doc A/71/L.41, 8 December 2016, at 5.

  100. 100.

    High-Level Panel on Access to Medicines (2016) Report of the United Nations Secretary-General’s High-Level Panel on Access to Medicines: Promoting Innovation and Access to Health Technologies, September 2016, http://www.unsgaccessmeds.org/final-report/, accessed 31 October 2017, at 25.

  101. 101.

    Ibid.

  102. 102.

    UNGA First Committee, Global health and foreign policy: health employment and economic growth, 2016, at 5.

  103. 103.

    High-Level Panel on Access to Medicines (2016) Report of the United Nations Secretary-General’s High-Level Panel on Access to Medicines: Promoting Innovation and Access to Health Technologies, at 26.

  104. 104.

    For a comprehensive discussion, see Grosse Ruse-Khan 2011b. While some of these clauses go some way to ensure the continued application or at least interpretative relevance of TRIPS flexibilities for IP provisions in FTAs, most make also sure that specific IP obligations of the FTA will prevail. Such clauses, even if they were widely adopted, therefore do not serve as an encompassing solution to the problem posed here.

  105. 105.

    See for example UNGA International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law: Report of the Study Group of the International Law Commission, UN Doc A/CN.4/L.682, 13 April 2006; Pauwelyn 2003.

  106. 106.

    See in particular VCLT, Article 31(3)(c)—discussed extensively in UNGA International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law: Report of the Study Group of the International Law Commission, 2006; Mclachlan 2005.

  107. 107.

    See for example VCLT, Article 30, on priority in application between subsequent treaties on the same subject matter—also discussed extensively in UNGA International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, 2006; Pauwelyn 2003.

  108. 108.

    On these issues, see Grosse Ruse-Khan 2016, in particular Chapters 5, 6 and 7.

  109. 109.

    Essentially, these provisions make subsequent ‘special agreements’ on the subject matter covered by the PC and BC subject to being not contrary to the rules in the existing treaties. Article 20 BC (as well as corresponding provision in Article 22 of the Rome Convention adds that alternatively, such agreements must provide ‘more extensive rights than those granted by the Convention’ (1961 International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, 496 UNTS 43, 26 October 1961 (‘Rome Convention’)) and thereby manifests a one-way street towards continuously increasing protections in core areas of international IP law (see generally Grosse Ruse-Khan and Kur 2008).

  110. 110.

    TRIPS Agreement, Article 1(1).

  111. 111.

    Ibid. (emphasis added).

  112. 112.

    For an analysis of this qualification and its implications for the principle of minimum standards, see Grosse Ruse-Khan 2009.

  113. 113.

    TRIPS Agreement, Article 1(1) (emphasis added).

  114. 114.

    Expressions of the notion of territoriality can be found in a range of international IP treaties, such as Article 5 of the Berne Convention, and Articles 4bis and 6 of the Paris Convention. The fact that in the context of regional integration (such as in the case of the European Union) countries have introduced regional IP rights where one right covers the territory of several states are an exception to this rule. Such exceptions do not result from simply entering into an obligation for ‘more extensive protection’ in an FTA—unless the parties to this agreement express their clear intention to establish such regional rights.

  115. 115.

    On the negotiation history of Article 1(1) TRIPS (whose records however do not seem to offer a conclusive answer on this point), see Gervais 2012, at 11–31; ICTSD and UNCTAD 2005, at 23.

  116. 116.

    See Multilateral Trade Negotiations the Uruguay Round, Chairman’s Report to the GNG: Status of Work in the Negotiating Group, 1990, at 6.

  117. 117.

    On the applicability of Article 41 in the TRIPS–FTA relations, see Sect. 3.4.2 below.

  118. 118.

    Rigaux et al. 2011, at 995.

  119. 119.

    From various ICJ cases where this was held, see in particular Elettronica Sicula S.p.A. (ELSI) (United States of America v Italy), ICJ, Judgement, ICJ Reports 1989, 20 July 1989, at 42; see also UNGA International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, 2006, para 185. See the next section for a brief discussion and further references showing that the relevant principles of Article 41 VCLT are indeed commonly considered as customary international law.

  120. 120.

    I am indebted for Fernando Bordin for making this point in discussions on the scope of Article 1(1).

  121. 121.

    Article V GATS, for example, states that ‘[t]his Agreement shall not prevent any of its Members from being a party to or entering into an agreement liberalizing trade in services between or among the parties to such an agreement’ if certain conditions are met (1994 General Agreement on Trade in Services, 1869 UNTS 183 (‘GATS’), Article V).

  122. 122.

    See Stoll et al. 2009, at 81–82; Gervais 2012, at 174. Also Mitchell and Voon conclude that TRIPS does not contain a rule on inter se agreements (see Mitchell and Voon 2009, at 597).

  123. 123.

    Grosse Ruse-Khan 2016.

  124. 124.

    Article 41 VCLT requires that two or more of the parties to a multilateral treaty ‘conclude an agreement to modify the treaty as between themselves alone’ (emphasis added): It follows that only for FTAs where at least one of the contracting parties is not a WTO Member, the general international law rule on inter se agreements does not apply (see Rigaux et al. 2011, at 987; UNGA International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, 2006, at 151–152). Hence, in cases where only one FTA contracting party is a WTO Member, the relation between TRIPS and any IP provisions in the FTA for this country is, absent any specific rules, determined by Article 30(4) VCLT.

  125. 125.

    See Pauwelyn 2003, at 305 and 315. In WTO dispute settlement, the Panel in Turkey – Textiles relied on Article 41(1) VCLT (see Turkey – Restrictions on Imports of Textiles and Clothing Products, WTO, Panel Report, WT/DS34/R, 31 May 1999 (‘Turkey – Textiles’), para 9.181.

  126. 126.

    1994 Agreement on Agriculture, 1867 UNTS 410 (‘AA’).

  127. 127.

    See Peru – Additional Duty on Imports of Certain Agricultural Products, WTO, Appellate Body Report, WT/DS457/AB/R, 31 July 2015 (‘Peru – Agricultural Products’), para 5.91.

  128. 128.

    Ibid., para 5.97.

  129. 129.

    Ibid., para 5.111.

  130. 130.

    Ibid., para 5.112 (emphasis added).

  131. 131.

    Ibid., para 5.113.

  132. 132.

    For a list of cases where the lex specialis principle is applied to establish a hierarchy primarily amongst different WTO rules, see Cook 2015, at 86–90.

  133. 133.

    UNGA International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, 2006, para 169. The Report continues that ‘[e]ven as it is clear that the competence of WTO bodies is limited to consideration of claims under the covered agreements (and not, for example, under environmental or human rights treaties), when elucidating the content of the relevant rights and obligations, WTO bodies must situate those rights and obligations within the overall context of general international law’ (ibid., para 170).

  134. 134.

    Korea – Measures Affecting Government Procurement, WTO, Report of the Panel, WT/DS163/R, 1 May 2000 (‘Korea – Procurement’), para 7.96.

  135. 135.

    Cook 2015, at 93–95.

  136. 136.

    UNGA International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, 2006, at 164; for a detailed analysis of the legal consequences of breach, see Pauwelyn 2003, at 310–315.

  137. 137.

    The conditional allowance of more extensive protection under Article 1(1) TRIPS does not amount to such a prohibition since it: (1) allows such protection unless it contravenes TRIPS provisions; (2) further deals with domestic implementation of such protection.

  138. 138.

    Rigaux et al. 2011, at 1002.

  139. 139.

    TRIPS Agreement, Article 1(3).

  140. 140.

    EC – GIs, para 7.148; see also Stoll et al. 2009, at 87; Correa 2007, at 60–61; Hestermeyer 2007, at 198 who all emphasise that TRIPS does not cover the domestic relationship between a Member and its own nationals.

  141. 141.

    A practical example is Article 224 of the EC – CARIFORUM Economic Partnership Agreement that introduces a general exception clause which arguably allows for IP-related exceptions beyond the flexibility the so-called ‘three-step-test’ in international IP law provides.

  142. 142.

    See TRIPS Agreement, Article 4(d): distinct to Article XXIV GATT and Article V GATS, TRIPS does not contain an exception from MFN (and national treatment) obligations which would limit additional commitments made in a post-TRIPS FTA to right holders from the FTA partner.

  143. 143.

    WTO, Amendment of the TRIPS Agreement, WT/L/641, 8 December 2005. The ‘paragraph six mechanism’, so called due to its original mandate in para 6 of the Doha Declaration (n 7), which this General Council decision implements, allows exports of medicines produced under a compulsory license into countries with insufficient manufacturing capacities.

  144. 144.

    See the Marrakesh Treaty, introducing mandatory minimum exceptions and limitations for VIPs.

  145. 145.

    See the discussion in Grosse Ruse-Khan 2016, Chapter 10, Section III.

  146. 146.

    For a detailed analysis on the impact of TRIPS-plus protection on the free movement of information, knowledge, and associated goods or services, see Grosse Ruse-Khan 2009, at 92–99.

  147. 147.

    Doha Declaration, para 4.

  148. 148.

    For de facto discrimination under the national treatment obligation, see EC – GIs, paras 7.131–7.140; for the general non-discrimination test on patent protection see Canada – Patents, paras 7.100–101.

  149. 149.

    VCLT, Article 41(1)(a)(i).

  150. 150.

    See generally Grosse Ruse-Khan and Jaeger 2009.

  151. 151.

    Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, ICJ, Advisory Opinion, ICJ Reports 1951, 28 May 1951, at 21.

  152. 152.

    See UNGA International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, UN Doc A/56/10, November 2001, Article 48(1), which distinguishes between obligations owed to individual states, ‘a group of States including that State, and is established for the protection of a collective interest of the group’ and those ‘owed to the international community as a whole’. See further Barcelona Traction, Light and Power Company, Limited (Belgium v Spain), ICJ, Judgment, ICJ Reports 1970, 24 July 1964, at 32; Pauwelyn 2003, at 52–56 and 59–60, which refers to Articles 30, 41, 53, 58 and 64 VCLT as expressions of this distinction.

  153. 153.

    Rigaux et al. 2011, at 1003–1004.

  154. 154.

    J Crawford, Special Rapporteur, Third Report on State Responsibility, 52nd session of the ILC, UN Doc A/CN/.4/507, 15 March 2000, para 92.

  155. 155.

    Pauwelyn 2003, at 62; Hestermeyer 2007, at 188–190.

  156. 156.

    Rigaux et al. 2011, at 1004.

  157. 157.

    Draft Convention on the Law of Treaties 1935, at 1018.

  158. 158.

    See UNGA International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, 2006, at 160–161. Pauwelyn 2003, at 308–309 shows in detail how the early case-law of the Permanent Court of International Justice (PCIJ) and ICJ, such as the Oscar Chin and Genocide Convention cases, informed and influenced this notion subsequently embodied in Article 41 VCLT.

  159. 159.

    Pauwelyn 2003, at 69–78. See also Hestermeyer 2007, at 197–199.

  160. 160.

    Pauwelyn 2003, at 71.

  161. 161.

    Article 5(3) BC makes this explicit by stating, ‘Protection in the country of origin is governed by domestic law.’

  162. 162.

    TRIPS Agreement, Article 1(3).

  163. 163.

    Ibid., Article 7.

  164. 164.

    See Doha Declaration, para 5(a).

  165. 165.

    Mitchell and Voon 2009, at 598 adopt a similar approach when they refer to public health related flexibilities as reflecting ‘the delicate balance agreed among WTO Members’ which groups of Members may not tie their hands to determine or restrict via an FTA. The negotiation history of Articles 7 and 8 confirms the importance of these provisions as part of the overall ‘TRIPS package’ (see Grosse Ruse-Khan 2016, Chapter 12, Section III). Hestermeyer 2007, at 198 comes to a similar conclusion as to the integral nature of TRIPS—but bases this primarily on the intention of negotiating states to establish an internationally harmonised system of protection.

  166. 166.

    See Dinwoodie and Dreyfuss 2012, at 175–201.

  167. 167.

    TRIPS Agreement, Article 8(1).

  168. 168.

    Ibid.

  169. 169.

    See also Grosse Ruse-Khan et al. 2013, para 5.

  170. 170.

    High-Level Panel on Access to Medicines (2016) Report of the United Nations Secretary-General’s High-Level Panel on Access to Medicines: Promoting Innovation and Access to Health Technologies, at 25–26.

  171. 171.

    2003 United States–Singapore Free Trade Agreement (‘US–Singapore FTA’), https://ustr.gov/sites/default/files/uploads/agreements/fta/singapore/asset_upload_file708_4036.pdf, accessed 1 November 2017, Article 16.7(4); US–Korea FTA, Article 18.8(4).

  172. 172.

    2003 United States–Chile Free Trade Agreement (‘US-Chile FTA’), https://ustr.gov/trade-agreements/free-trade-agreements/chile-fta/final-text, accessed 1 November 2017, Article 17.9(4); 2004 United States-Morocco Free Trade Agreement (‘US-Morocco FTA’), http://tcc.export.gov/static/final_text_Morocco_FTA.pdf, accessed 1 November 2017, Article 15.9(6); US-Singapore FTA, Article 16(7)(5); 2004 United States–Bahrain Free Trade Agreement (‘US-Bahrain FTA’), https://ustr.gov/trade-agreements/free-trade-agreements/bahrain-fta/final-text, accessed 1 November 2017, Article 14.8(5).

  173. 173.

    2000 United States-Jordan Free Trade Agreement (‘US-Jordan FTA’), https://ustr.gov/sites/default/files/Jordan%20FTA.pdf, accessed 1 November 2017, Article 4(20); US-Singapore FTA, Article 16.7(6); 2004 United States–Australia Free Trade Agreement (‘US-Australia FTA’), https://ustr.gov/sites/default/files/uploads/agreements/fta/australia/asset_upload_file148_5168.pdf, accessed 1 November 2017, Article 17.9(7).

  174. 174.

    See the Paris and Berne Convention rules that govern the applicability of subsequent revisions (PC, Articles 20–27; BC, Articles 27–32), particularly in those rules limiting the ability of the contracting parties to enter into ‘special agreements’ (PC, Article 19; BC, Article 20) which aim to ensure that international IP protection can only increase, not decrease.

  175. 175.

    See Grosse Ruse-Khan 2016, at 324–29; Roffe and Vea 2009, at 79; generally Patel et al. 2001.

  176. 176.

    See the review of the negotiation history of Articles 7 and 8 in Sect. 3.3.1.1.

  177. 177.

    See Sect. 3.3.2.

  178. 178.

    I borrow this instructive term from the subtitle of Dinwoodie and Dreyfuss 2012. The term here, however, is understood as toughness, ability to resist, or capacity to withstand difficulties—instead of elasticity or flexibility (as Dinwoodie and Dreyfuss primarily appear to understand resilience).

References

  • Abbott FM (2002) The Doha Declaration on the TRIPS Agreement and Public Health: Lighting a Dark Corner at the WTO. Journal of International Economic Law 5(2):469–505

    Google Scholar 

  • American Law Institute (1987) Restatement, Third, Foreign Relations of the United States – Volume 1. American Law Institute, Philadelphia

    Google Scholar 

  • Blakeney M (1996) Trade Related Aspects of Intellectual Property Rights: A Concise Guide to the TRIPS Agreement. Sweet & Maxwell, London

    Google Scholar 

  • Boyle A, Freestone D (1999) Introduction. In: Boyle A, Freestone D (eds) International Law and Sustainable Development: Past Achievements and Future Challenges. Oxford University Press, Oxford, 1–18

    Google Scholar 

  • Charnovitz S (2002) The Legal Status of the Doha Declarations. Journal of International Economic Law 5(1):207–211

    Google Scholar 

  • Cook G (2015) A Digest of WTO Jurisprudence on Public International Concepts and Principles. Cambridge University Press, Cambridge

    Google Scholar 

  • Cordonier Segger M, Khalfan A (2004) Sustainable Development Law: Principles, Practices, and Prospects. Oxford University Press, Oxford

    Google Scholar 

  • Correa C (2007) Trade Related Aspects of Intellectual Property Rights. Oxford University Press, Oxford

    Google Scholar 

  • Dinwoodie GB, Dreyfuss RC (2012) A Neofederalist Vision of TRIPS: The Resilience of the International Intellectual Property Regime. Oxford University Press, New York

    Google Scholar 

  • Draft Conventions on the Law of Treaties (1935) Article 22 Effect of Later Treaties. American Journal of International Law 29:1009–1029

    Google Scholar 

  • Drahos P (2003) Expanding Intellectual Property’s Empire: the Role of FTAs. http://www.grain.org/rights_files/drahos-fta-2003-en.pdf. Accessed 1 November 2017

  • Drahos P (2016) A Philosophy of Intellectual Property. ANU eText, Canberra. https://press.anu.edu.au/publications/philosophy-intellectual-property. Accessed 23 November 2017

  • Dreyfuss R, Frankel S (2015) From Incentive to Commodity to Asset: How International Law is Reconceptualizing Intellectual Property. 36 Michigan Journal of International Law 36(4): 557–602

    Google Scholar 

  • Elmahjub E (2016) A Case for Flexible Intellectual Property Protection in Developing Countries: Brief Lessons from History, Psychology and Economics. European Intellectual Property Review 38(1):31–42

    Google Scholar 

  • Fisher M (2001) Theories of Intellectual Property. In: Munzer SR (ed) New Essays in the Legal and Political Theory of Property. Cambridge University Press, Cambridge, 168–200

    Google Scholar 

  • Ganesan AV (2015) Negotiating for India. In: Watal J, Taubman A (eds) The Making of the TRIPS Agreement: Personal Insights from the Uruguay Round Negotiations. WTO Publications, Geneva, 211–238

    Google Scholar 

  • Gervais D (2012) The TRIPS Agreement: Drafting History and Analysis, 4th edn. Sweet & Maxwell, London

    Google Scholar 

  • Grosse Ruse-Khan H (2007) The Role of Chairman’s Statements in the WTO. Journal of World Trade 41(3):475–534

    Google Scholar 

  • Grosse Ruse-Khan H (2009) Time for a Paradigm Shift? Exploring Maximum Standards in International Intellectual Property Protection. Journal of Trade, Law and Development 1(1):56–102

    Google Scholar 

  • Grosse Ruse-Khan H (2010) A Real Partnership for Development? Sustainable Development as Treaty Objective in European Economic Partnership Agreements and Beyond. Journal of International Economic Law 13(1):139–180

    Google Scholar 

  • Grosse Ruse-Khan H (2011a) The (Non) Use of Treaty Object and Purpose in Intellectual Property Disputes in the WTO. Max Planck Institute for Intellectual Property & Competition Law Research Paper Series. http://ssrn.com/abstract=1939859. Accessed 1 November 2017

  • Grosse Ruse-Khan H (2011b) The International Law Relation Between TRIPS and Subsequent TRIPS-Plus Free Trade Agreements: Towards Safeguarding TRIPS Flexibilities? Journal of Intellectual Property Law 18(2):325–365

    Google Scholar 

  • Grosse Ruse-Khan H (2016) The Protection of Intellectual Property in International Law. Oxford University Press, Oxford

    Google Scholar 

  • Grosse Ruse-Khan H, Drexl J, Hilty RM, Kur A, Bakhoum M, Jaeger T, Köklü K, Lamping M, Nadde-Phlix S, de Beer J, Correa C, Dinwoodie G, Frankel S, Flynn S, Hestermeyer H, Mercurio B, Roffe P, Seuba X, Yu P (2013) Principles for Intellectual Property Provisions in Bilateral and Regional Agreements. International Review of Intellectual Property and Competition Law 44(8):878–883

    Google Scholar 

  • Grosse Ruse-Khan H, Jaeger T (2009) Policing Patents Worldwide? EC Border Measures against Transiting Generic Drugs under EC and WTO Intellectual Property Regimes. International Review of Intellectual Property and Competition Law 40(5):502–538

    Google Scholar 

  • Grosse Ruse-Khan H, Kur A (2008) Enough is Enough – The Notion of Binding Ceilings in International Intellectual Property Protection. Max Planck Institute for Intellectual Property, Competition & Tax Law Research Paper Series. http://ssrn.com/abstract=1326429. Accessed 1 November 2017

  • Helfer LR (2004) Regime Shifting: The TRIPs Agreement and New Dynamics of International Intellectual Property Lawmaking. Yale Journal of International Law 29(1):1–83

    Google Scholar 

  • Hestermeyer H (2007) Human Rights and the WTO: The Case of Patents and Access to Medicines. Oxford University Press, Oxford

    Google Scholar 

  • Hoekman B, Martin WJ, Primo Braga CA (2006) Preference Erosion: The Terms of the Debate. World Bank. http://siteresources.worldbank.org/INTRANETTRADE/Resources/Preferences_Intro_Terms_of_the_Debate.pdf. Accessed 1 November 2017

  • Howse R (2000) Adjudicative Legitimacy and Treaty Interpretation in International Trade Law: The Early Years of WTO Jurisprudence. In: Weiler J (ed) The WTO, the EC and the NAFTA: Towards a Common Law of International Trade. Oxford University Press, Oxford, 35–70

    Google Scholar 

  • Hughes J (1988) The Philosophy of Intellectual Property. Georgetown Law Journal 77:287–366

    Google Scholar 

  • ICTSD, UNCTAD (2005) Resource Book on TRIPS and Development. UNCTAD/ICTSD, Geneva. https://www.iprsonline.org/unctadictsd/ResourceBookIndex.htm. Accessed 26 November 2017

  • Khan BZ (2002) Intellectual Property and Economic Development: Lessons from American and European History. Commission on Intellectual Property Study Paper. http://www.iprcommission.org/papers/pdfs/study_papers/sp1a_khan_study.pdf. Accessed 1 November 2017

  • Kumar N (2002) Intellectual Property Rights, Technology and Economic Development: Experiences of Asian Countries. Commission on Intellectual Property Study Paper. http://www.iprcommission.org/papers/pdfs/study_papers/sp1b_kumar_study.pdf. Accessed 1 November 2017

  • Kur A, Mizaras V (eds) (2011) The Structure of Intellectual Property Law: Can One Size Fit All? Edward Elgar, Cheltenham

    Google Scholar 

  • Lowe V (1999) Sustainable Development and Unsustainable Arguments. In: Boyle A, Freestone D (eds) International Law and Sustainable Development: Past Achievements and Future Challenges. Oxford University Press, Oxford, 19–38

    Google Scholar 

  • Malbon J, Lawson C, Davison M (2014) The WTO Agreement on Trade Related Aspects of Intellectual Property Rights: A Commentary. Edward Elgar, Cheltenham

    Google Scholar 

  • Matthews D (2004) WTO Decision on Implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health: A Solution to the Access to Essential Medicines Problem? Journal of International Economic Law 7(1):73–107

    Google Scholar 

  • Mclachlan C (2005) The Principle of Systemic Integration and Article 31(1)(c) of the Vienna Convention. International and Comparative Law Quarterly 54(2):279–319

    Google Scholar 

  • Mitchell AD, Voon T (2009) Patents and Public Health in the WTO, FTAs and Beyond: Tension and Conflict in International Law. Journal of World Trade 43(3):571–601

    Google Scholar 

  • OECD (2004) ‘Indirect Expropriation’ and the ‘Right to Regulate’ in International Investment Law. OECD Working Papers on International Investment. http://dx.doi.org/10.1787/780155872321. Accessed 30 October 2017

  • Patel SJ, Roffe P, Yusuf A (eds) (2001) International Technology Transfer: The Origins and Aftermath of the United Nations Negotiations on a Draft Code of Conduct. Kluwer Law International, The Hague

    Google Scholar 

  • Pauwelyn J (2003) Conflict of Norms in Public International Law. Cambridge University Press, Cambridge

    Google Scholar 

  • Pires de Carvalho N (2014) The TRIPS Regime of Patents and Test Data, 4th edn. Kluwer Law International, Alphen aan den Rijn

    Google Scholar 

  • Raustiala K (2006) Density & Conflict in International Intellectual Property Law. University of California, Los Angeles School of Law Research Paper. http://ssrn.com/abstract=914606. Accessed 1 November 2017

  • Rigaux A, Simon D, Spanoudis J, Weemaels E (2011) Article 41: Convention of 1969. In: Corten O, Klein P (eds) The Vienna Convention on the Law of Treaties – Volume II. Oxford University Press, Oxford, 986–1008

    Google Scholar 

  • Roffe P, Vea G (2009) The WIPO Development Agenda in an Historical and Political Context. In: Netanel NW (ed) The Development Agenda: Global Intellectual Property And Developing Countries. Oxford University Press, Oxford, 79–109

    Google Scholar 

  • Sell S (2003) Private Power, Public Law: The Globalisation of Intellectual Property Rights. Cambridge University Press, Cambridge

    Google Scholar 

  • Shanker D (2002) The Vienna Convention on the Law of Treaties, the Dispute Settlement of the WTO and the Doha Declaration on the TRIPS Agreement. Journal of World Trade 36(4):721–772

    Google Scholar 

  • Slade A (2011) Articles 7 and 8 of the TRIPS Agreement: A Force for Convergence within the International IP System. The Journal of World Intellectual Property 14(6):413–440

    Google Scholar 

  • Spence M (2002) Justifying Copyright. In: McClean D, Schubert K (eds) Dear Images: Art, Copyright and Culture. Ridinghouse, Manchester, 389–403

    Google Scholar 

  • Stoll P, Busche J, Arend K (2009) WTO – Trade-Related Aspects of Intellectual Property Rights. Martinus Nijhoff, Leiden/Boston

    Google Scholar 

  • Tarragô PS (2015) Negotiating for Brazil. In: Watal J, Taubman A (eds) The Making of the TRIPS Agreement: Personal Insights from the Uruguay Round Negotiations, WTO Publications, Geneva, 239–256

    Google Scholar 

  • Van Damme I (2009) Treaty Interpretation by the WTO Appellate Body. Oxford University Press, Oxford

    Google Scholar 

  • Varella MD (2004) The WTO, Intellectual Property and Aids: Case Studies from Brazil and South Africa. Journal of World Intellectual Property 7(4):523–547

    Google Scholar 

  • Wälde TW (2004) Natural Resources and Sustainable Development: From ‘Good Intentions’ to ‘Good Consequences’. In: Schrijver NJ, Weiss F (eds) International Law and Sustainable Development: Principles and Practice. Martinus Nijhoff, Leiden/Boston, 119–152

    Google Scholar 

  • Yusuf A (1998) TRIPS: Background, Principles and General Provisions. In: Correa C, Yusuf A (eds) Intellectual Property and International Trade: The TRIPS Agreement. Kluwer Law International, London, 3–22

    Google Scholar 

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    Henning Grosse Ruse-Khan

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Grosse Ruse-Khan, H. (2018). From TRIPS to FTAs and Back: Re-Conceptualising the Role of a Multilateral IP Framework in a TRIPS-Plus World. In: Amtenbrink, F., Prévost, D., Wessel, R. (eds) Netherlands Yearbook of International Law 2017. Netherlands Yearbook of International Law, vol 48. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-243-9_3

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