Interpreting and Implementing the TRIPS Agreement
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Interpreting and Implementing the TRIPS Agreement

Is it Fair?

Edited by Justin Malbon and Charles Lawson

This book considers whether the WTO agreement on ‘Trade-Related Aspects of Intellectual Property Rights’ (TRIPS) will become a vehicle for promoting greater international equity and engagement with the world economy or a tool for wealthy nations to extract excessive rents from poorer countries. Can TRIPS garner the necessary degree of legitimacy and public trust to deliver economic development? Can it become a key instrument for promoting international health and development? In response to these questions, the book proposes interpretive possibilities for the TRIPS’ text along with implementation strategies to avoid the threat of its irrelevancy due, amongst other things, to free trade agreements containing TRIPS-plus terms.
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Chapter 8: TRIPS-plus Treaty Terms: Dealing with Coercion

Justin Malbon


Justin Malbon 1. INTRODUCTION A number of chapters in this book criticise bilateral Free Trade Agreements (FTA) between a strong state and a weak state containing TRIPS-plus terms.1 The general criticism made is that the TRIPS-plus terms are unfair or exploitative and serve the self-interest of a strong state at the expense of the interests of a weak state. This chapter is interested in how it might be decided within a legal framework whether TRIPS-plus terms are unfair or exploitative. An implication underlying the criticisms is that TRIPS-plus terms are obtained through coercion or undue influence, or unfair exploitation of the strong party’s dominant position. Under present law, a treaty is void if procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations. Arguably, a treaty is also void if procured by the threat or use of economic duress. It seems highly unlikely that the TRIPS-plus FTAs referred to in this book were attained by the threat of force. It might be possible to claim they were attained by actual or threatened economic duress. Even on a generous interpretation of the law the threatened or actual duress needs to be reasonably blatant. There probably needs to be a threat of the imposition of economic sanctions if the weak nation does not agree to the treaty terms. Again, it seems unlikely that the TRIPS-plus FTAs have been obtained through economic duress defined in this way....

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