Introduction to Introduction to WTO and TRIPsWTO and TRIPs

Prof. Anil B. SurajProf. Anil B. Suraj

IIM BangaloreIIM Bangalore

© 2009 BananaIP

Session ObjectivesSession Objectives

To understand the basic concepts of To understand the basic concepts of global governance of IPRs as global governance of IPRs as employed by TRIPs within the WTO employed by TRIPs within the WTO frameworkframework

To appreciate the working principles To appreciate the working principles of enforcement and dispute of enforcement and dispute settlementsettlement

““Interests” in Interests” in GlobalizationGlobalization

Rebuilding by “developed” economies Rebuilding by “developed” economies – UN, IBRD (WB), IMF, GATT/ITO– UN, IBRD (WB), IMF, GATT/ITO

Strategic incorporation of “developing” Strategic incorporation of “developing” nation concerns – UNCTAD & Part-IV nation concerns – UNCTAD & Part-IV GATTGATT

Building of “consensus” in WTOBuilding of “consensus” in WTO

WTO – Constitutional WTO – Constitutional PrinciplesPrinciples

Most Favoured Nation (MFN)Most Favoured Nation (MFN)

National TreatmentNational Treatment

One Member – One VoteOne Member – One Vote

Reverse Consensus RuleReverse Consensus Rule

WTO – Principles …WTO – Principles …

Single Undertaking – except in Plurilateral FormSingle Undertaking – except in Plurilateral Form

Dispute Settlement – multi-tiered structureDispute Settlement – multi-tiered structure

Enforcement – Sanctions and CountermeasuresEnforcement – Sanctions and Countermeasures

Supreme respect for Negotiations – at all Supreme respect for Negotiations – at all stagesstages

WTO – dilutes WTO – dilutes sovereignty?sovereignty?

Sovereignty vs. InterdependencySovereignty vs. Interdependency

Classification and recognition of core Classification and recognition of core principles of constitutional democracy:principles of constitutional democracy: Human rights; Human rights; Popular sovereignty; Popular sovereignty; Transparency; Transparency; Limited government; Limited government; Democracy; Democracy; Rule of law; Rule of law; Checks and balancesChecks and balances

Evolution of IPR regimeEvolution of IPR regime

Early 17th Century Monopolies StatuteEarly 17th Century Monopolies StatuteMaximum flexibility to national Maximum flexibility to national

governmentsgovernments

Paris Convention (1883); Berne Paris Convention (1883); Berne Convention (1886); Madrid Agreement Convention (1886); Madrid Agreement (1891) – for different forms of IPRs(1891) – for different forms of IPRsMinimum obligations but with flexibilitiesMinimum obligations but with flexibilitiesNational Treatment; Reciprocal obligationsNational Treatment; Reciprocal obligations

TRIPs Regime – Salient TRIPs Regime – Salient FeaturesFeatures

Basic and Founding PrinciplesBasic and Founding Principles MFN status; National TreatmentMFN status; National Treatment

Forms of IPRs and bases of protectionForms of IPRs and bases of protection Aiming for uniformityAiming for uniformity

Enforcement Mechanisms mandatedEnforcement Mechanisms mandated Civil and Criminal; Border measuresCivil and Criminal; Border measures

Special Provisions and Dispute Special Provisions and Dispute SettlementSettlement Accent on technology transfer & promotionAccent on technology transfer & promotion Non-violation ComplaintsNon-violation Complaints

TRIPs Regime …TRIPs Regime … TRIPs – common institutional framework for TRIPs – common institutional framework for

IPRs related trade concernsIPRs related trade concerns In-built flexibilities: Novartis matter in IndiaIn-built flexibilities: Novartis matter in India Complementary role of WIPO; Emerging RTAsComplementary role of WIPO; Emerging RTAs

Balance between removing incentives for Balance between removing incentives for counterfeit trade and facilitating legitimate counterfeit trade and facilitating legitimate tradetrade

Enforcement mechanismsEnforcement mechanisms Autonomy given to Member nations to “enforce Autonomy given to Member nations to “enforce

law in general” – no need for specific judicial law in general” – no need for specific judicial systemsystem

Principles of EnforcementPrinciples of Enforcement

Procedural fairness and equityProcedural fairness and equity Protection of confidentialityProtection of confidentiality

Evidentiary principles Evidentiary principles Use of adverse inference by some NationsUse of adverse inference by some Nations

Remedies through injunctions (ex parte), Remedies through injunctions (ex parte), damages, costs, disposal and destructiondamages, costs, disposal and destruction

Defendant safeguards – if process is abusedDefendant safeguards – if process is abused

Systemic Flexibilities – Systemic Flexibilities – Enforcement measuresEnforcement measures

Border enforcement measuresBorder enforcement measures CBEC – IPRs (Imported Goods) Enforcement Rules, 2007CBEC – IPRs (Imported Goods) Enforcement Rules, 2007

Single authority determinationsSingle authority determinations

Provisional measures and proceduresProvisional measures and procedures

Right holder being informedRight holder being informed

Suo motuSuo motu release of goods release of goods

De minimisDe minimis standards – non-commercial standards – non-commercial

Dispute Settlement Dispute Settlement ProcessProcess

Built on the bedrock of ConsultationsBuilt on the bedrock of Consultations

Panel + Appellate Review = special Panel + Appellate Review = special regard to Developing country and Third regard to Developing country and Third Party interestsParty interests

Outcomes are recommendations to DSBOutcomes are recommendations to DSB

ADRs in Dispute Settlement ProcessADRs in Dispute Settlement Process

Issues and ConcernsIssues and Concerns

Panel and Appeal need to only conclude Panel and Appeal need to only conclude on the inconsistency of measures – not on the inconsistency of measures – not HOW they could be made consistentHOW they could be made consistent Encourages non-compliance/delayed response?Encourages non-compliance/delayed response?

Appeal may – uphold, modify or reverse – Appeal may – uphold, modify or reverse – only the legal findings of the Panelonly the legal findings of the Panel Appeal limited only to issues of lawAppeal limited only to issues of law No remand powers upon factual inadequacyNo remand powers upon factual inadequacy

Panel & Appellate Panel & Appellate jurisdictionjurisdiction

Apex adjudication over Sovereign power?Apex adjudication over Sovereign power?

““Public” & political vs. “Private” economicsPublic” & political vs. “Private” economics

Free-Trade Constitution – an Free-Trade Constitution – an “Understanding” – being interpreted“Understanding” – being interpreted

Multi-disciplinary issues: “Brown” & Multi-disciplinary issues: “Brown” & “Green”“Green”

TRIPs: Emerging issuesTRIPs: Emerging issues Transfer of TechnologyTransfer of Technology

IP Assets Valuation; Legal frameworkIP Assets Valuation; Legal framework

Innovation-driven management structureInnovation-driven management structure Return on Innovations (RoI)Return on Innovations (RoI) Intellectual asset managementIntellectual asset management Strategic Licensing – flexibilities under TRIPsStrategic Licensing – flexibilities under TRIPs

Anti-competitive & Confidentiality clausesAnti-competitive & Confidentiality clauses

Non-violation Complaints and Dispute Non-violation Complaints and Dispute settlementsettlement

Thank You!Thank You!

absuraj@iimb.ernet.in