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The Objectives and Principles of the WTO TRIPS Agreement_ A Detai.pdf (1.09 MB)

The Objectives and Principles of the WTO TRIPS Agreement: A Detailed Anatomy

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journal contribution
posted on 2018-02-13, 14:21 authored by Alison Slade
Article 7 (Principles) and Article 8 (Objectives) are prominent within the text of the WTO TRIPS Agreement, yet have figured sparingly in the reasoning of the Dispute Settlement Body (DSB). This discrepancy is accentuated when considered in light of three key factors. First, the pioneering step taken by TRIPS negotiators to include broad declarations of intent within the operative text. Second, the 2001 reinforcement given to these provisions in the Doha Declaration on TRIPS and Public Health. Finally, the verbatim replication of these provisions within other international IP instruments, notably, the Trans-Pacific Partnership, the Anti-Counterfeiting Trade Agreement and the WIPO Development Agenda. Taken together, these factors compel a greater investigation into the meaning and application of Articles 7 and 8. This article aims to contribute to this enquiry by exposing the individual elements of each provision to a detailed textual analysis. As will be demonstrated, necessity, reasonableness, consistency and good faith are legal principles found within Articles 7 and 8. Additionally, these provisions recognise a pivotal interpretative principle—that of national regulatory autonomy. This includes, but goes beyond, deference to national policy choices, to recognising a state-centric method of calibration that must guide the application of TRIPS and any other agreement within which they are incorporated.

History

Citation

Osgoode Hall Law Journal, 2016, 53 (3), pp. 948-998 (50)

Author affiliation

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

Version

  • VoR (Version of Record)

Published in

Osgoode Hall Law Journal

Publisher

Osgoode Hall Law School

issn

0030-6185

Acceptance date

2016-05-13

Copyright date

2016

Available date

2018-02-13

Publisher version

http://digitalcommons.osgoode.yorku.ca/ohlj/vol53/iss3/6

Language

en

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