The WTO Dispute Settlement System and the Evolution of International IP Law: An Institutional Perspective

Abstract

One of the major advancements in the legal regime of international trade with the transition from GATT to the WTO was the constitution of a more sophisticated and efficient dispute settlement system (DSS). The institutional design of dispute settlement was negotiated heavily during the Uruguay Round and is eventually set out in the Dispute Settlement Understanding (DSU) forming part of the Agreement Establishing the WTO. By linking the international legal regime of intellectual property (IP) with that of international trade through the TRIPS Agreement, the DSU becomes applicable also to disputes based on alleged violations by Members of their obligations concerning IP rights as laid down in TRIPS.

This paper provides in a first step a concise description of the evolution and main components of the WTO dispute settlement system. Taking a comparative institutional approach, it conceptualises the DSS as one among many interlocked arenas for decision-making on global IP policy issues. International adjudication thus presents an alternative to international and national political and administrative processes, but also to unfettered global markets for information goods. The paper looks closer into the institutional modalities that condition participation of interested actors (private entities and states) in dispute settlement proceedings and compares these with participation modalities of alternative decision-making processes. The paper concludes with some pragmatic proposals that link issues of governance with the evolution of IP law at the international level.

In the paper the argument is made first, that implicit in every discussion on substantive IP law and policy is the question of choosing the appropriate level and institution for IP decision-making in a multi-level system of IP governance. Secondly, it is argued that substantively just and efficient outcomes are intrinsically linked to and dependent on the institutional design of law and policy making processes. Given the public good nature of information and knowledge, which are at the core of IP rights, the norms for attribution and enforcement of such rights are of relevance for broad interests of citizens, researchers, and users of information goods. Hence, the capacity of IP institutions to ensure adequate representation and participation of affected actors and interests is decisive for accommodating new interests as they emerge and for facilitating change and regime flexibility. Any future reform of TRIPS should therefore not only deal with substantive rules but should also consider the need for change in procedural and institutional modalities.

Keywords: Intellectual Property, World Trade, TRIPS, WTO, Dispute Settlement, Institutional Choice, Institutional Design, Participation