Is it Fair?
Edited by Justin Malbon and Charles Lawson
Chapter 4: Last Chance? Multilateralism, TRIPS and Developing Countries
Xu Yi-chong 1. INTRODUCTION Making rules for the protection of intellectual property rights (IPRs) involves ﬁnding a balance between the interests of right-holders and right-users. The ﬁrst international trade agreement on IPRs protection, the Agreement on Trade-Related Intellectual Property Rights (TRIPS Agreement) is skewed in favour of the interests of intellectual property right-holders and the countries where they reside at the expense of rightusers and developing countries.1 It is, however, not in the interest of developing countries to abandon or to reopen the TRIPS Agreement. This chapter argues that there are three instruments available in the WTO system that may allow developing countries to pursue their interests and address some of the imbalances inherent in the TRIPS Agreement: the TRIPS Council, which is empowered to oversee and monitor the implementation of the Agreement; the dispute settlement mechanism embedded in the WTO Dispute Settlement Understanding (DSU); and the continuing negotiations in adjusting the multilateral trading regime. Two important features of the TRIPS Agreement make the use of these instruments feasible. One is the ﬂexibility of the TRIPS Agreement: like all international agreements, the provisions of the Agreement are broadly, and sometimes even vaguely, deﬁned and their implications therefore depend heavily on the interpretation of these provisions. The other is the ‘positive’ nature of the required enforcement process: the TRIPS Agreement requires the adoption and adaptation of domestic legislation. The combination of international and domestic politics embedded in the TRIPS Agreement means that its enforcement will inevitably involve a political and...
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