Land: Adjudicating TRIPS for Development

Molly Land (New York Law School) has posted Adjudicating TRIPS for Development (in TRIPS and Developing Countries: New Perspectives, Gustavo Ghidini et al. eds., forthcoming). Here's the abstract:

This book chapter considers the development impact of the decision to subject the international intellectual property standards established by the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) to the mandatory dispute resolution process of the World Trade Organization (WTO). This decision has had two important consequences for developing countries. First, it has contributed to the creation of a “pro intellectual property climate” in which countries have foregone flexibilities to which they would otherwise be entitled. Second, it has also led adjudicators to miss the unique need for internal balancing associated with intellectual property, resulting in overly restrictive interpretation of TRIPS flexibilities. For the least-developed countries (LDCs), the loss of flexibilities is particularly problematic.

This chapter seeks to revive the special and differential provisions available to developing and LDCs in WTO dispute resolution to counter this loss of flexibilities. Specifically, it recommends using a little-known provision of the Dispute Settlement Understanding, Article 24.1, to benefit LDCs in TRIPS disputes. The chapter argues that Article 24.1 could and should be used in TRIPS disputes to provide LDCs with greater flexibility in implementing their obligations under the treaty, including through a more lenient standard of review, shifting the burden of proof with respect to exceptions and limitations, and requiring injury as part of a prima facie case against an LDC.