Yi-chong, Xu --- "Last Chance? Multilateralism, TRIPS and Developing Countries" [2008] ELECD 210; in Malbon, Justin; Lawson, Charles (eds), "Interpreting and Implementing the TRIPS Agreement" (Edward Elgar Publishing, 2008)

Book Title: Interpreting and Implementing the TRIPS Agreement

Editor(s): Malbon, Justin; Lawson, Charles

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847201447

Section: Chapter 4

Section Title: Last Chance? Multilateralism, TRIPS and Developing Countries

Author(s): Yi-chong, Xu

Number of pages: 25

Extract:

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 right-
users and developing countries.1 It is, however, not in the interest of devel-
oping 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 nego-
tiations in adjusting the multilateral trading regime. Two important fea-
tures of the TRIPS Agreement make the use of these instruments feasible.
One is the flexibility of the TRIPS Agreement: like all international agree-
ments, 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
...