WTO Dispute Settlement Practice Relating to the Agreement on Trade-Related Intellectual Property Rights

The jurisprudence developed by panels and the Appellate Body (AB) under the TRIPS Agreement during the first six-plus years of implementation reflects a cautious and gradualist approach to interpretation of the agreement. The decisions provide a collective reminder of the importance that WTO Members attach to the use of intellectual property as an instrument of industrial and social policy and the intention of those Members to maintain adequate flexibility to address domestic circumstances. The adoption by Ministers of the Declaration on the TRIPS Agreement and Public Health at Doha on 14 November 2001 was a seminal event in the evolution of WTO law, and will influence jurisprudence under the TRIPS Agreement.The AB began the development of TRIPS jurisprudence by cutting back on what it viewed as a too-liberal approach to interpretation by a panel, insisting that the focus of interpretation be on the terms of the agreement, and not on the "expectations" of Members and private operators. This approach by the AB was heartening to commentators who worried that the flexibility inherent in the terms of the agreement might be limited by over-attention to the perceived interests of right holders. However, it is also apparent that an interpretative approach emphasizing the plain language of the text contains built-in limitations. The TRIPS Agreement was designed to permit a substantial measure of national discretion in its implementation, and adjudicators will not find the broadly drafted provisions of the agreement perfectly instructive in some contexts.The complex nature of TRIPS Agreement interpretation became evident in the decision of the panel in the Canada Patent Protection of Pharmaceutical Products (Canada - Generic Pharmaceuticals) case. This case involved application of Article 30 of the TRIPS Agreement concerning exceptions to patents, and demonstrated how difficult application of a balancing text is in the context of the WTO. Although the panel labored courageously to establish the "plain meaning" of the terms of what it characterized as a three-pronged test under Article 30, in the final analysis it necessarily engaged in a subjective balancing of the interests represented. The most problematic TRIPS DSU decision is that of the AB in the United StatesSection 211 Omnibus Appropriations Act of 1998 (US Havana Club) case. Although the underlying subject matter of the case was inconsequential (being nothing more than a commonplace trademark dispute between two wealthy alcoholic beverage distillers), the AB's application of extremely rigorous national and MFN treatment standards may lead to more serious questions down the road.Language and interpretation fundamentally involve subjective inquiry. In a national constitutional framework, there are checks and balances on the exercise of subjective authority that are expected to result in a proper reflection of the public interest. Since the WTO legal system does not contain comparable checks and balances, the review under the DSU of intellectual property legislation addressing important public policy issues will continue to present a challenge to the legitimacyof WTO governance. The Ministerial Declaration on the TRIPS Agreement and Public Health represented the beginning of efforts to introduce checks and balances.