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Matthew Kennedy

The WTO decided in 2002 that a provision of US law blocking enforcement of rights to the Havana Club rum trade mark and trade name was inconsistent with the TRIPS Agreement. Even though the WTO's rulings remain unimplemented today, the European Union has never requested a remedy to enforce them. The difficulties in enforcing the rulings cannot simply be explained by the US embargo on trade with Cuba. Rather, the rulings were based on hypothetical scenarios and a category of intellectual property right (trade name protection) that is not covered by the WTO rules on retaliation. In these circumstances, the WTO dispute settlement rules are not designed to provide an effective inducement to compliance. The problematic rulings were all introduced on appeal and expose operational problems in the Dispute Settlement Understanding (DSU) procedures as applied to TRIPS.

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Matthew Kennedy

The EU regulations on geographical indications for wines establish a scheme that provides GI-like protection for an assortment of non-geographical words, phrases and initials known as ‘traditional terms’. These terms may only be used with wines with a GI according to specified conditions and they constitute an absolute ground for refusal of a trade mark application. The European Union has shown flexibility in allowing identical terms to be used with different wines from different EU member states and from third countries that conclude a bilateral wine agreement, but it has ceased to consider applications for recognition of the same terms from other countries. The EU scheme is inconsistent with WTO obligations, not in TRIPS but rather in the TBT Agreement and GATT 1994, because it is discriminatory and administered in an unreasonable manner, and it may also create an unnecessary obstacle to trade. The United Kingdom may decide to abandon this scheme after Brexit.

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Matthew Kennedy

Law, and therefore courts, can only make sense of collective agency in terms of constituted power that is power exercised in conformity with law. However, constituent power, insofar as it purports to create a new legal order, cannot act in conformity with the existing legal order. Constituent power can only be understood as lawful, therefore, if it is understood retroactively, from the perspective of the new legal order. This article considers the ICJ's treatment of the constituent power of ‘the People’ in the Kosovan declaration of independence, and the Supreme Court of Canada's consideration of the Quebecois legal right to secede. Considering the literature on constituent power and the ontology of ‘the People’, this article suggests that democracy and the rule of law offer a partial solution to the paradox of constituent power. It introduces John Searle's ontology of ‘institutional facts’, arguing that the nature of the constituent entity can be understood as a ‘status function’ created by a ‘Declaration’. It concludes by considering the limits to the justiciability of constituent power and the corollary necessity for recognition, or what Derrida calls a ‘last instance’.