Challenging Trips-Plus Agreements: The Potential Utility of Non-Violation Disputes

Abstract

A World Trade Organization (WTO) non-violation complaint is one where an agreement has not been breached, but the complainant alleges an expected benefit under the agreement has been abrogated. When the TRIPS Agreement came into force non-violation complaints were not available for TRIPS disputes. This position was to be reviewed. Non-violation complaints remain unavailable for TRIPS disputes. In the early days of TRIPS the exclusion of non-violation disputes seemed rational because of the unique nature of TRIPS, among WTO agreements. The TRIPS Agreement requires members to implement minimum standards of intellectual property protection in their national laws. Members therefore have to provide at least that level of protection. If they do not do so a violation complaint could be initiated. Consequently, it was not logical to look for any notion of expected benefit beyond the wording of the minimum standards. However, TRIPS permits members to have greater standards and many members have agreed to higher standards through free trade agreements. These TRIPS-plus standards have arguably undermined expected benefits that should flow from TRIPS, especially for users of intellectual property rights. This article discusses the utility of making non-violation disputes available for TRIPS disputes from the perspectives of both the users and owners of intellectual property rights. This analysis includes a discussion of whether TRIPS-plus free trade agreements undermine expected benefits of the TRIPS Agreement and should thus be the subject of a non-violation dispute.