Proposals for Reform of TRIPS
Edited by Annette Kur
Chapter 3: The WTO Dispute Settlement System and the Evolution of International IP Law: An Institutional Perspective
Antonina Bakardjieva Engelbrekt 1. INTRODUCTION One of the major advances in the legal regime of international trade from the transition from GATT to the WTO was the constitution of a more sophisticated and efficient dispute settlement system (DSS). The institutional design of dispute settlement was the subject of intense negotiations during the Uruguay Round and was eventually set out in the Dispute Settlement Understanding (DSU) forming part of the Agreement Establishing the WTO.1 The dispute settlement procedure builds on the relevant provisions of the GATT, but is far more elaborate, moving in the direction of a quasi-judicial mechanism. By linking the international legal regime of intellectual property (IP) with that of international trade through the TRIPS Agreement, the DSU becomes applicable also to disputes based on alleged violations by Members of their obligations concerning IP rights as laid down in TRIPS.2 The WTO dispute settlement mechanism and its institutional design are therefore of the utmost significance for the interpretation of the TRIPS Agreement and eventually for the dynamics of IP law-making and for the fine-tuning of today’s complex multi-level system of IP governance.3 1 See Understanding on Rules and Procedures Governing the Settlement of Disputes (Dispute Settlement Understanding, DSU), Appendix I (B). 2 See Article 64 TRIPS with reference to Articles XXII and XXIII of GATT 1994 and the DSU. The possibility of using the WTO dispute settlement procedure to enhance treaty compliance was in fact a major incentive for integrating IP rights into the world trade system. See Lee...
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