Frankel, Susy --- "The Applicability of GATT Jurisprudence to the Interpretation of the TRIPS Agreement" [2010] ELECD 558; in Correa, M. Carlos (ed), "Research Handbook on the Interpretation and Enforcement of Intellectual Property under WTO Rules" (Edward Elgar Publishing, 2010)

Book Title: Research Handbook on the Interpretation and Enforcement of Intellectual Property under WTO Rules

Editor(s): Correa, M. Carlos

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849801072

Section: Chapter 1

Section Title: The Applicability of GATT Jurisprudence to the Interpretation of the TRIPS Agreement

Author(s): Frankel, Susy

Number of pages: 21

Extract:

1 The applicability of GATT jurisprudence
to the interpretation of the TRIPS
Agreement
Susy Frankel


1. Introduction
To assess the applicability of interpretations of GATT1 to the TRIPS
Agreement2 it is necessary to examine the relationship between those
agreements. The relationship between the TRIPS Agreement and other
WTO agreements is complex. Structurally, the relationship is that the
GATT, GATS3 and the TRIPS Agreement are the main annexes of the
WTO Agreement.4 The TRIPS Agreement preamble, among other broad
statements of intention, says that the members recognised the `need for
new rules and disciplines concerning . . . the applicability of the basic
principles of GATT 1994' to the TRIPS Agreement. When the TRIPS
Agreement was first in force, this preamble made sense as there were
established practices and understandings about the operation of GATT
1947. The new WTO Agreement, including TRIPS, was established to
develop and change the original GATT 1947, particularly the process of
dispute settlement. However, GATT disputes were the known source of
discussion of trade principles and WTO panels and the Appellate Body
referred to them, particularly in the earlier disputes brought to the WTO.5


1
General Agreement on Tariffs and Trade 1994, Marrakesh Agreement
Establishing the World Trade Organization (`WTO Agreement'), Annex 1A,
Article XX, 15 April 1994, 1867 UNTS 187, 33 ILM 1153 (1994) (`GATT').
2
Agreement on Trade-related Aspects of Intellectual Property Rights, 15
April 1994, Marrakesh Agreement Establishing the World Trade Organization
(`WTO Agreement'), Annex 1C, 33 ILM 1197, 1198 (1994) (`TRIPS Agreement').
...