Global governance in intellectual property protection: does the decision-making forum matter?
NCCR Trade Working Paper No. 2011/45 by Thomas Cottier & Marina Foltea
The question whether TRIPS would bring economic benefit not only to the developed but also developing countries has been debated ever since the nascence of this legal instrument. This has been widely assessed through the so-called balance of rights and obligations established in the TRIPS Agreement. With the advent of parallel bi- and plurilateral IP rule-making fora, this question has acquired even more nuances requiring examination of specific legal language at all these different levels. Against this background and by examining the balance language of the relevant treaties, this paper examines how the negotiation fora producing IP rules impact on the achievement of a balance between the rights and obligations of the stakeholders involved. Thus, global, plurilateral and bilateral IP norm-making avenues are assessed with the view to understanding whether there is any discrepancy in their capacity to reflect a balance of rights and obligations. Thus, we are mainly interested in comparing multilateral fora bilateral and plurilateral fora and how they differ in terms of outcomes. We find that this balance is better secured under the WTO TRIPS Agreement and other multilateral forums in particular WIPO. This is why we propose greater judicial openness towards the developments in this organisation at the WTO – a mechanism which should partially compensate for the Doha negotiations stalemate.