The Applicability of GATT Jurisprudence to the Interpretation of the TRIPS Agreement

Abstract

It has been almost 15 years since the TRIPS Agreement came into force and its relationship with the GATT has developed in that time. The relationship between the agreements has been discussed in dispute settlement and in negotiations in the TRIPS Council. As the role of TRIPS has become more widely understood, it has become clear that its relationship with other trade agreements may not be what it should be. While the GATT and GATS agreements have as their overall goal the liberalisation of trade, the protection of intellectual property is a different goal that sometimes works as a trade barrier, rather than a liberalising tool. This feature of intellectual property was known when the TRIPS Agreement was completed, but the rhetoric that intellectual property protection, within the WTO, was necessary to prevent counterfeiting in the global world won the day. Also, there continues to be concerns over the impact of the TRIPS Agreement on innovation and technology transfer, particularly in developing countries. The flexibilities in the TRIPS Agreement have not produced results that really assist in development of local innovation and technology transfer. This chapter discusses the differences between GATT, GATS and the TRIPS Agreement and whether GATT and GATS jurisprudence is relevant to the interpretation of the TRIPS Agreement. The chapter concludes, amongst other things, that GATT principles may also be applicable to the interpretation of some TRIPS Agreement exceptions, particularly where those exceptions require external sources to give them a meaning in the TRIPS Agreement context. However, the applicability of GATT principles seems to vary according to what is at issue. As yet it is not clear that there is a consistent approach to the use of GATT principles in the interpretation of the TRIPS Agreement.

Keywords: Intellectual Property, GATT Jurisprudence, TRIPS Agreement