Research Handbook on the Interpretation and Enforcement of Intellectual Property under WTO Rules

Research Handbook on the Interpretation and Enforcement of Intellectual Property under WTO Rules

Intellectual Property in the WTO Volume II

Research Handbooks on the WTO series

Edited by Carlos M. Correa

This concise and detailed Handbook addresses some of the most complex issues raised by the implementation of the TRIPS Agreement globally. Among other themes, the Handbook explores the applicability of GATT jurisprudence for the interpretation of the Agreement’s provisions. It also considers key issues relating to the enforcement of intellectual property rights, such as border measures and injunctive relief. Teamed with the first volume – Research Handbook on the Protection of Intellectual Property under WTO Rules – this analysis is supplemented by a thorough review of the most important cases on TRIPS decided under the WTO dispute settlement mechanism.

Chapter 8: Dispute Settlement Under the TRIPS Agreement: The United States–Brazil (2000) and United States–Argentina (2002) Patent Disputes

Viviana Muñoz Tellez

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

Extract

Viviana Muñoz Tellez The WTO dispute settlement system and the TRIPS agreement The objective of the dispute settlement system of the World Trade Organization (WTO) is to provide security and predictability to the multilateral trading system.1 The settlement of situations in which a member considers that any benefits accruing to it directly or indirectly under the covered agreements are being impaired by measures taken by another member is considered essential to the effective functioning of the WTO and the maintenance of a proper balance between the rights and obligations of members.2 In addition to finding solutions to disputes, the dispute settlement system also works to clarify and interpret the provisions of WTO agreements. The Ministerial Conference and General Council are empowered to render interpretations of the WTO agreements. However, for the most part these bodies do not exercise their authority to do so. Instead, members often rely on the rulings of the Dispute Settlement Body (DSB), the Appellate Body, panels and arbitrations to provide interpretative guidance on the agreement provisions. Decisions taken by these bodies with respect to prior specific disputes are informative for interpretation purposes in subsequent disputes, but not binding. These decisions must not change the WTO law that is applicable between the parties, that is, add to or diminish the rights and obligations provided in the WTO Agreements.3 The WTO dispute settlement system applies to the Agreement on Traderelated Aspects of Intellectual Property Rights (TRIPS). Consultations and the settlement of disputes under the TRIPS Agreement are...

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