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GOOD FAITH AND THE TRIPS AGREEMENT: PUTTING FLESH ON THE BONES OF THE TRIPS ‘OBJECTIVES’

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journal contribution
posted on 2019-02-21, 12:48 authored by A Slade
The WTO Panel decision in United States–Section 211 Omnibus Appropriations Act 1998 provides an interesting, and as yet under-appreciated, explanation of the function of one of the most politically debated articles of the TRIPS Agreement—Article 7. This provision has received limited recognition from the Dispute Settlement Body of the WTO. Consequently, the Panel's interpretation of Article 7 as an expression of the good faith principle is noteworthy, and is one that is not disavowed by the Appellate Body. Not only does the Panel acknowledge Article 7 as an effective source of law within the international intellectual property system, but in doing so it introduces into the TRIPS Agreement legal concepts that are not explicit within the text. This has implications for the function of this provision and also for the nature of the obligations arising under the Agreement for Member States. This article analyses the potential significance of this development by defining the scope of the good faith principle within the TRIPS Agreement. Particular reference will also be made to the role Article 7, as an expression of the good faith principle, may have in the forthcoming WTO dispute against Australia and its law on plain packaging for tobacco products.

History

Citation

International and Comparative Law Quarterly, 2014, 63 (02), pp. 353-383

Author affiliation

/Organisation/COLLEGE OF SOCIAL SCIENCES, ARTS AND HUMANITIES/Leicester Law School

Version

  • AM (Accepted Manuscript)

Published in

International and Comparative Law Quarterly

Publisher

Cambridge University Press for British Institute of International and Comparative Law

issn

0020-5893

eissn

1471-6895

Copyright date

2014

Available date

2019-02-21

Publisher version

https://www.cambridge.org/core/journals/international-and-comparative-law-quarterly/article/good-faith-and-the-trips-agreement-putting-flesh-on-the-bones-of-the-trips-objectives/1A274CD4C83489AB3F26F9D72679F01E

Language

en

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    Keywords

    Exports