TRIPS: A Link Too Far? A Proposal for Procedural Restraints on Regulatory Linkage in the WTO

Abstract

Cross-issue linkage in trade negotiations provides a powerful tool to advance multilateral agreements by allowing negotiators to overcome vested interests that block progress on any one issue through offsetting concessions in unrelated areas. When used to advance regulatory harmonization, however, such linkage strategies present special dangers not present in the normal trade liberalization context. TRIPS, the WTO's landmark agreement harmonizing intellectual property rights, serves as a case study that exemplifies these dangers. The lessons of TRIPS should lead us to hesitate before embracing strategic linkage (or logrolling) as a procedural means to advance regulatory harmonization in other areas. This Article concludes by proposing procedural safeguards on regulatory linkage that would help to alleviate such concerns and promote greater confidence in future negotiations.

Keywords: international trade, TRIPS, intellectual property, WTO, linkage, harmonization