Is it Fair?
Edited by Justin Malbon and Charles Lawson
Chapter 2: TRIPS as Competitive and Cooperative Interpretation
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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