Law Commons^™

Are Developing Countries Playing A Better Trips Game, Peter K. Yu

Faculty Scholarship

The Agreement on Trade-Related Aspects of Intellectual Property Rights entered into force more than 15 years ago. Although commentators have widely criticized the Agreement for its failure to address the needs, interests, conditions, and priorities of less developed countries, few have examined whether these countries have now attained greater success in shaping the development of the Agreement than they did before. This Article seeks to fill the void by examining the performance of these countries at various stages of development of the TRIPS Agreement.

Utilizing game theory and game metaphors, this Article disaggregates the "TRIPS game" into five different mini-games: …

The Trips Enforcement Dispute, Peter K. Yu

Faculty Scholarship

2010 marks the fifteenth anniversary of the entering into force of the WTO TRIPS Agreement. When the Agreement was adopted, commentators quickly extolled the unprecedented benefits of having a set of multilateral enforcement norms built into the international intellectual property regime. Although intellectual property rights holders continue to rely on protection offered by the TRIPS Agreement, many of them have now become frustrated with the inadequacy of such protection. The agreement’s enforcement provisions, in particular, have been criticized as weak, primitive, and obsolete.

After more than a decade of implementation, these provisions finally became the subject of a dispute before …

Six Secret (And Now Open) Fears Of Acta, Peter K. Yu

Faculty Scholarship

In April 2009, Japan, the United States, the European Community, and other negotiating parties of the Anti-Counterfeiting Trade Agreement released a joint consolidated draft of the once-secret agreement. Although the release of this document has alleviated some of the concerns about the lack of transparency and public participation, there remain many unanswered questions.

Written for a symposium on intellectual property law, this article argues that ACTA remains highly problematic and dangerous. It identifies six different fears of the Agreement: (1) concerns over the procedural defects of the ACTA negotiation process; (2) the potential for ACTA to ratchet up the already …

Trips Enforcement And Developing Countries, Peter K. Yu

Faculty Scholarship

In January 2009, the WTO Dispute Settlement Body released a panel report on China - Measures Affecting the Protection and Enforcement of Intellectual Property Rights. The dispute concerned the inadequacy of protection and enforcement of intellectual property rights in China under the TRIPS Agreement. While both China and the United States were quick to declare victory in this dispute, less developed countries might have become the dispute’s unintended and unannounced winner.

As part of the symposium on the Anti-counterfeiting Trade Agreement (ACTA) and international intellectual property enforcement, this Article focuses on the implications of this panel report for less developed …

Trips And Its Achilles' Heel, Peter K. Yu

Faculty Scholarship

Written for the "15 Years of TRIPS Implementation" Symposium, this article examines why the TRIPS Agreement fails to provide effective global enforcement of intellectual property rights. It attributes such failure to five sets of challenges: historical, economic, tactical, disciplinary, and technological.

The article then outlines the various actions taken by both developed and less developed countries to steer the TRIPS Agreement and the larger international intellectual property system toward their preferred positions. While developed countries push for the development of stronger enforcement norms, less developed countries resist those demands and complain about the use of bilateral, plurilateral, and regional trade …

Sinic Trade Agreements, Peter K. Yu

Faculty Scholarship

In the past decade, the European Union and the United States have pushed aggressively for the development of bilateral and regional trade agreements. What are the strengths and weaknesses of these agreements? Are China's bilateral and regional trade agreements different from these agreements? What are China's goals and negotiation strategies? What will happen if China's bilateral approach clashes with that of the European Union or the United States?

This Article begins by examining China's growing engagement with the less developed world, in particular Africa, Latin America and Southeast Asia. It analyzes the goals, strengths and weaknesses of EU economic partnership …

Vat Fraud: Mtic & Mtec - The Tradable Services Problem, Richard Thompson Ainsworth

Faculty Scholarship

Tradable services – VoIP termination services, mobile minutes, software as a service (SaaS), or almost any service bought or sold in the “cloud” – are a distinct class of taxable supplies. These service-based supplies both resemble and differ fundamentally from goods. They also differ from services that are consumed-on-purchase (consumed services).

Tradable services are designed from the beginning for re-sale. They are hybrid supplies that behave commercially like goods, but have functional attributes that make them hard to distinguish from services generally. When determining the place of supply/ place of taxation for these kinds of supplies, their hybrid character presents …

International Antitrust Cooperation And The Preference For Nonbinding Regimes, Anu Bradford

Faculty Scholarship

Today, multinational corporations operate in increasingly international markets, yet antitrust laws regulating their competitive conduct remain national. Thus, corporations are subject to divergent antitrust regimes across the various jurisdictions in which they operate. This increases transaction costs, causes unnecessary delays, and raises the likelihood of conflicting decisions. The risks inherent in multi-jurisdictional regulatory review were prominently illustrated in the proposed GE/Honeywell acquisition, which failed following the European Union’s (“EU”) decision to prohibit the transaction despite its earlier approval in the United States. Inconsistent remedies imposed on Microsoft following parallel investigations by both the U.S. and EU authorities serve as another …

Acta And Its Complex Politics, Peter K. Yu

Faculty Scholarship

Written for a special issue on the politics of intellectual property, this article examines the "country club" approach the negotiating parties of the Anti-Counterfeiting Trade Agreement (ACTA) embraced to establish new and higher international intellectual property enforcement standards. It points out that the agreement is flawed not only because it is a country club agreement but also because it is a bad country club agreement.

The article then situates ACTA in the context of a recent trend of using bilateral, plurilateral and regional trade and investment agreements to circumvent the multilateral norm-setting process. It contends that this disturbing trend could …

The Wto Dispute Settlement System 1995-2010: Some Descriptive Statistics, Henrik Horn, Louise Johannesson, Petros C. Mavroidis

Faculty Scholarship

The Dispute Settlement (DS) system is a central feature of the World Trade Organization (WTO) Agreement. This compulsory and binding two-level mechanism for the adjudication of disputes between WTO Members is the most active among international courts. The functioning of the DS system has attractive research interest among both lawyers and economists. This paper reports some descriptive statistics of the working of the DS system based on the recently updated Horn and Mavroidis WTO Dispute Settlement Data Set. The data set covers all 426 WTO disputes initiated through the official filing of a Request for Consultations from January 1, 1995, …

Climate Change And The Wto: Expected Battlegrounds, Surprising Battles, Daniel M. Firger, Michael B. Gerrard

Faculty Scholarship

This article examines the issue of climate change policy and international trade law. While conventional wisdom may have predicted that conflicts in trade law would emerge through climate-related protectionist measures, such as carbon tariffs on imports from countries with less stringent controls on greenhouse gas emissions, the authors point out that government support for climate-friendly technologies has in fact emerged as the primary battleground. The authors examine two recent disputes—between the United States and China and between Japan and Canada – over green subsidies and their implications for the future of clean energy.

The Surprising Benefits To Developing Countries Of Linking International Trade And Intellectual Property, Rachel Brewster

Faculty Scholarship

The World Trade Organization's Trade Related Intellectual Property (TRIPS) Agreement is controversial, requiring WTO members to establish a host of domestic institutions to support intellectual property rights, including substantive laws creating rights and a host of enforcement procedures. Trade scholars and development advocates frequently criticize the agreement as economically harmful to developing countries. This Article does not argue that the TRIPS Agreement is beneficial for developing states, but highlights how the agreement has produced some surprising benefits over the last decade and a half. First, the TRIPS Agreement's requirement that developing states make the domestic enforcement of intellectual property rules …

The Remedy Gap: Institutional Design, Retaliation, And Trade Law Enforcement, Rachel Brewster

Faculty Scholarship

One of the major innovations of the World Trade Organization’s (“WTO”) Dispute Settlement Understanding (“DSU”) is the regulation of sanctions in response to violations of trade law. The DSU requires governments to receive multilateral approval before suspending trade concessions and limits the extent of retaliation to prospective damages. In addition, the DSU permits governments to impose only conditional sanctions: sanctions for violations that continue after the dispute resolution process is complete. This enforcement regime creates a remedy gap: governments cannot respond, even to obvious breaches, until the end of the dispute resolution process (and then only to the extent of …

The Road To Nowhere: Caterpillar V. Usinor And Cisg Claims By Downstream Buyers Against Remote Sellers, Donald J. Smythe

Faculty Scholarship

No abstract provided.

The Genesis Of The Gats (General Agreement On Trade In Services), Juan A. Marchetti, Petros C. Mavroidis

Faculty Scholarship

The Uruguay Round services negotiations saw the light of day amidst pressures from lobbies in developed countries, unilateral retaliatory actions, and ideological struggle in the developing world. The final outcome, the GATS, certainly characterized by a complex structure and awkward drafting here and there, is not optimal but is an important first step towards the liberalization of trade in services. This article traces the GATS negotiating history, from its very beginning in the late 1970s, paying particular attention to the main forces that brought the services dossier to the multilateral trading system (governments, industries, and academics), and the interaction between …

L'Interprétation Systémique: Le Liant Du Droit International, Giovanni Distefano, Petros C. Mavroidis

Faculty Scholarship

Systemic Interpretation in International and WTO Law: The Glue of the International Legal Order

The authors endeavour to emphasis the paramount role of systemic interpretation, provided for and codified in Article 31 (3) c) of the 1969 Vienna Convention on the Law of Treaties, in the light of both general international and WTO Law. This short essay ultimately leads to the confirmation that this hermeneutics method accrues by all means to the cementation of the international legal order.