Interpreting and Implementing the TRIPS Agreement

Interpreting and Implementing the TRIPS Agreement

Is it Fair?

Edited by Justin Malbon and Charles Lawson

This book considers whether the WTO agreement on ‘Trade-Related Aspects of Intellectual Property Rights’ (TRIPS) will become a vehicle for promoting greater international equity and engagement with the world economy or a tool for wealthy nations to extract excessive rents from poorer countries. Can TRIPS garner the necessary degree of legitimacy and public trust to deliver economic development? Can it become a key instrument for promoting international health and development? In response to these questions, the book proposes interpretive possibilities for the TRIPS’ text along with implementation strategies to avoid the threat of its irrelevancy due, amongst other things, to free trade agreements containing TRIPS-plus terms.

Chapter 2: TRIPS as Competitive and Cooperative Interpretation

Christopher Arup

Subjects: development studies, development economics, law and development, economics and finance, development economics, law - academic, intellectual property law, law and development

Extract

Christopher Arup 1. INTRODUCTION This chapter offers a way of thinking about the field of TRIPS interpretation – not so much the record of interpretive practices as the continuing competitive and cooperative efforts to structure interpretation selectively and steer a path through the criss-cross of regulation. Interpretation is not a mechanical task, it depends on who is deciding and the styles and sources of law for deciding. This chapter first lays out features of the law making field, characterises the mix of competitive and cooperative strategies, and asks whether this process of interpretation will ever be closed off. It then tests these propositions against the experience with interpretation in two places – inside the WTO as dispute settlement and outside within bilateral treaty making. Throughout, the experience is illustrated by the interpretations given to pharmaceutical patent protection. 2. THE DYNAMICS OF THE FIELD Where should we look for insights into international intellectual property law making? Those from socio-legal studies would recommend that we do not start by looking for formal hierarchies of legal authority and settled, static rules for conduct. Globalisation blurs the boundaries between jurisdictions of law and multiplies the encounters between divergent legalities. It is better now to track the currents, circuits and communities of interpretation. For this task, organising principles like regulatory networks, global governance and legal pluralism will provide greater assistance. As a force for convergence of law, the impact of TRIPS should not be underestimated. It provides a strong pro-rights framework for any consideration of...

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