Chapter 8: Dealing with Forum Shopping: Some Lessons from the SECURE Negotiations at the World Customs Organization
Henrique Choer Moraes1 INTRODUCTION2 Forum shopping is a widely used tool in policy-making as a whole. This is no less true in the domain of international intellectual property rights (IP/IPRs), the history of the TRIPS Agreement3 being a prominent example.4 Despite the challenges posed to international governance by the proliferation of overlapping agendas, it is a fact that countries seek amenable venues to push their interests. Since there is no such thing as a clear-cut, stone-written division of labour among international fora, to a certain extent convenience is the rule that dictates where a given agenda is to be advanced. In this sense, forum shopping is a by-product of the ‘anarchical’ state that marks international politics. Of course, some forums could arguably be regarded as being better positioned than others to host negotiations of certain issue areas. This is due to a variety of reasons ranging from institutional features – such as a specific perspective or expertise from which an organization views a given subject – to the normative acquis of legal instruments negotiated within the organization’s framework. While this does not by itself rule out the migration of issues to alternative forums, pursuing an agenda in one organization that exhibits the features mentioned above has the added value of legimitacy. The expansion in the scope of intellectual property rules ushered in by the advent of the TRIPS Agreement has increased the number of forums with a legitimate claim to incorporate intellectual property issues into their agendas. In light of the consequences...
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