Competition Law, Technology Transfer and the TRIPS Agreement

Competition Law, Technology Transfer and the TRIPS Agreement

Implications for Developing Countries

Tu Thanh Nguyen

The book investigates competition law and international technology transfer in the light of the TRIPS Agreement and the experience of both developed and developing countries. On that basis, it draws relevant implications for developing countries.

Chapter 4: Prospects of Technology Transfer-Related Competition Law in a Global Context

Tu Thanh Nguyen

Subjects: law - academic, competition and antitrust law, intellectual property law, international economic law, trade law


4. Prospects of technology transferrelated competition law in a global context 4.1 ALTERNATIVES AND CHALLENGES It is generally accepted that competition law and IP law should be developed in tandem in order to promote competition and innovation and to curb IPR abuses. The TRIPS Agreement sets global minimum standards of IP protection. But the need for controlling and correcting unilateral abusive conduct of right holders and anti-competitive restraints in technology transfer agreements is taken into account only by general agreement that the reasonable application of domestic competition law to technology transfer, at the discretion of each country Member, should be compatible with the TRIPS Agreement. This leads to the fact that, as discussed in Chapters 2 and 3, such an application varies from one country to another; and in each country it varies over time. The complexity and technical challenges of the issues together with both internal and external obstacles hinder applications in developing countries. Some alternatives are proposed for solving the issue in a global context. However, each alternative has its own advantages and challenges. 4.1.1 Enforcement Outsourcing Since firms holding IPR-intensive technology often come from developed countries while developing countries lack expertise and resources in competition law and enforcement capacity, it is proposed that the competition authorities in developed countries should undertake enforcement actions against firms headquartered or located in their jurisdiction.1 Commitments from See, e.g., Dreyfuss, Rochelle Cooper (2004), ‘TRIPS-Round II: Should Users Strike Back?’, U. Chi. L. Rev., 71, 32; Hoekman, Mernard M. et al....

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