General Agreement on Tariffs and Trade Part 2

The United States/European Communities Biotech Products Case: Opportunity for World Trade Organization Consideration of Whether Internally Applied Non-Tax Measures Fall Within the Scope of the General Agreement on Tariffs and Trade Article XI(1)’s Reference to “Other Measures”
Rex J. Zedalis
Journal of World Trade
Volume 38, Number 4, August 2004 p.647

WTO CASE REVIEW 2002
Raj Bhala and David A. Gantz
Arizona Journal of International and Comparative Law
Volume 20, Number 2, Summer 2003 p.143

This is a third in an annual series of articles reviewing the “reports”(decisions) of the Appellate Body, the highest judicial entity of the World Trade Organization. Since its inception in 1995, the Appellate Body has issued more than fifty reports, currently at a rate of eight or nine per year. These reports, applying and interpreting various provisions of the General Agreement on Tariffs and Trade and the other WTO agreements, are perhaps the most significant single source of WTO jurisprudence. The authors’ intention is to provide a comprehensive, critical summary of each of the reports as a useful and reliable record of case law.

The Technical Barriers to Trade Agreement, the Sanitary and Phytosanitary Measures Agreement, and the General Agreement on Tariffs and Trade – A Map of the WTO Law of Domestic Regulation of Goods
Gabrielle Marceau & Joel P. Trachtman
Journal of World Trade
Volume 36, Number 5, October 2002 p.811

DRAFT CONVENTION ON JURISDICTION AND RECOGNITION OF JUDGMENTS IN INTELLECTUAL PROPERTY MATTERS
Rochelle C. Dreyfuss and Jane C. Ginsburg
Chicago-Kent Law Review
Volume 77, Number 3, 2002 p.1065

This proposal is meant to spur the intellectual property bar to consider whether it would be desirable to create a regime for international enforcement of intellectual property law judgments. Such a convention could be adopted under the auspices of the World Intellectual Property Organization (“WIPO”) or through the World Trade Organization (“WTO”). There are several reasons to believe that an instrument drafted specifically for intellectual property disputes would be particularly advantageous. First, for intellectual property disputes, efficiency should be a principal target. Modern distribution methods, particularly satellite and Internet transmissions, make it increasing likely that intellectual property rights will be exploited simultaneously in more than one territory. The ability to consolidate claims arising from these usages in one court, with the expectation that the judgment of that court will be recognized in all convention States, could reduce costs for all sides, conserve judicial resources on an international basis, and promote consistent outcomes. Second, a convention drafted for intellectual property disputes can take account of issues uniquely raised by the intangibility of the rights in issue. For example, an intellectual property agreement can consider the ability of a potential defendant to gain litigation advantages through the choice of the location of the activities that give rise to infringement. In certain situations, the propriety of expanding jurisdiction depends on the possibility of inconsistent outcomes; a convention tailored to intellectual property can specify what that term means in the context of public goods. An instrument for intellectual property litigation can also deal specifically with matters of unique concern to the creative community. The strong link between culture on the one hand, and intellectual production and utilization on the other, means that the territoriality of these rights is of crucial importance: individual nations must be able to retain some control over the local conditions under which these products are created, exploited, and accessed. At the same time, an approach that creates new avenues for cross-cultural enrichment needs to be considered. For example, the circumstances where trans-border injunctions are permissible can be specified to include consideration of cultural, health, and safety issues. Other issues of prime interest to the information industries can also be considered: provisions on contract disputes can be tailored to deal with mass-market contracts, which are becoming prevalent in certain intellectual property transactions; provisions on infringement can be made sensitive to the interests of the “new media,”such as Internet Service Providers. Most important, the convention can be confined to rights covered by the intellectual property part of the General Agreement on Tariffs and Trade (“TRIPs Agreement”) and open to signature only to countries that have joined the WTO and fully implemented the TRIPs Agreement. Since these are countries that have agreed to enforce intellectual property law and are subject to dispute resolution proceedings if they fail to do so, these limitations would reduce concerns that forum shopping will undermine the delicate balance that each nation has struck between the rights of intellectual property users and owners. And although dispute resolution under the WTO cannot provide litigants with a substitute for a centralized and authoritative appellate body (such as the US Supreme Court or the European Court of Justice), it can provide assurance of transparent and efficient judicial process, along with institutional mechanisms (such as dispute resolution panels, the Dispute Settlement Board, and the Council for TRIPs) for examining intellectual property law as it develops through consolidated adjudication of multinational disputes.

Author: international

Mentioned in these Entries

General Agreement on Tariffs and Trade, General Agreement on Tariffs and Trade.