The problems with the nature of the obligation in Article 66.2 of TRIPS

Abstract

The paper argues that Article 66.2 of the Trade-Related Aspects of Intellectual Property Agreement (TRIPS)—which mandates developed countries to provide incentives to their enterprises and institutions to facilitate technology transfer to Least Developed Countries (LDCs)—as presently framed, is unlikely to help LDCs build a viable technological base. Examining the history and motivations for the inclusion of Article 66.2 in TRIPS and examining its framing, the paper argues that because the process that led to its inclusion was ad hoc, the construction of the provision is riddled with ambiguities that make its implementation difficult for both developed countries and LDCs. The paper also notes that the subsequent lack of interpretative guidance and enforceability through the World Trade Organization's dispute settlement system further exacerbates the conceptual failures in the provision and limits its usefulness for LDCs.