This article analyses the impact of the Lisbon Treaty on the competence of the European Union over the content of the TRIPS Agreement, based on a discussion of the judgment of the Court of Justice of the European Union in the Daiichi case, in which the Court decided in essence that exclusive external competence for the common commercial policy covers the whole of the TRIPS Agreement.
Isabelle Van Damme
Andreas Sennekamp and Isabelle Van Damme
This article offers a pragmatic account of the practice of treaty interpretation by the Court of Justice of the European Union and the dispute settlement system of the World Trade Organization. The first part of the article addresses several institutional and structural aspects of the context in which treaty interpretation is undertaken and which may have a bearing on the practice of treaty interpretation. The second part of the article identifies several constraints on that practice, such as the characteristics of the treaty texts being interpreted, limitations resulting from multilingualism, as well as particular features of the decision-making processes in the Court of Justice of the European Union and the dispute settlement system of the World Trade Organization. By contributing these institutional and practical considerations to the debate on the operation of the principles set out in Articles 31 to 33 of the Vienna Convention on the Law of Treaties, the article demonstrates that, as part of the renewed interest in the law of treaties, the study of the internal functioning and design of international courts is critical for a proper assessment of the development of the law of treaties.