Edited by Susy Frankel
The international intellectual property system is framed as one where states can create policies and laws that reflect local economic, social, innovation and development conditions. As such, the optimal international intellectual property regime is arguably a system of functional pluralism. At international law the concept of functional pluralism often describes the various systems in international law, which include subsystems and, at the same time, form a whole. Depending on their subject matter, subsystems of international law reflect differences and, as a consequence, pluralism of approaches at regional and national level is an inevitable result. International intellectual property law is almost certainly a sub-system of international law that has many parts and may sub-systems of its own. The minimum standards international framework and the dynamic nature of its subject matter allows intellectual property law to constantly evolve in response to internal stimuli, particularly in jurisdictions with established regimes. Rules are important so that those involved in intellectual property can frame policy, do business, create and solve disputes in ways that leads to concrete solutions. This process is not possible for all countries as many nations still face hurdles to implement seemingly high levels of protection and an even greater struggle lies in adapting any standards to the reality of local conditions. Other countries have been able to rise to the challenge of implementation and have experimented with and innovated in the development of their laws. In some instances, national laws are relatively uncontested, but in others the degree of flexibility used is controversial.
Edited by Susy Frankel
The author examines the rules relating to the interpretation of treaties, as embodied in the Vienna Convention on the Law of Treaties. She argues that there is little indication that WIPO applies these rules in the drafting and application of its own treaties, and that this can have unexpected effects as more and more other international organizations become involved in the international intellectual property system. In particular, she highlights the use of preambles as part of the ‘context’ in the interpretation of treaty provisions, and provides a critique of the way in which WIPO has evolved the use of ‘agreed statements’ in recent years. She argues that WIPO should, in the future, align its treaty drafting practices with the Vienna Convention rules so as to achieve greater concordance with the way in which these rules are applied by other international actors.