{"title":"Trade-Related Aspects of Intellectual Property Rights Waiver at the World Trade Organization: A BIT of a Challenge","authors":"Prabhash Ranjan","doi":"10.2139/ssrn.3888980","DOIUrl":"https://doi.org/10.2139/ssrn.3888980","url":null,"abstract":"To augment the global production and distribution of Covid-19 medical products such as vaccines, drugs and other therapeutics, countries are negotiating for temporarily waiving certain provisions of the TRIPS agreement at the WTO. Depending on the conditions that would govern the waiver, countries would amend their domestic intellectual property (IP) laws to effectively implement the waiver. While the waiver would provide immunity to IP-related regulatory measures from legal claims at the WTO, multinational pharmaceutical companies can use the investor-State dispute settlement (ISDS) mechanism under bilateral investment treaties (BITs) to challenge such IP-related regulatory measures. In case of such a challenge to IP-related regulatory measures, will the host State be able to defend these measures? The paper answers this question by dividing the investment treaty practice into those BITs that contain carve-out for IP and those that don’t. The former set of treaties provides greater regulatory autonomy to implement the TRIPS waiver. However, given the fragmented and incoherent nature of the ISDS mechanism, the final outcome would depend on arbitral discretion.","PeriodicalId":122765,"journal":{"name":"LSN: WTO Law (Topic)","volume":"53 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-07-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127429277","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"EU Carbon Border Adjustments for Imported Products and WTO Law","authors":"J. Englisch, Tatiana Falcão","doi":"10.2139/ssrn.3863038","DOIUrl":"https://doi.org/10.2139/ssrn.3863038","url":null,"abstract":"In 2020, the European Commission announced its intention to table a legislative proposal for a Carbon Border Adjustment Mechanism (CBAM), as part of a wider package of laws aimed at implementing the EU Green Deal. It furthermore stated that it would explore various options, such as a so-called “carbon tax” on selected products, a new carbon customs duty, or the extension of the EU ETS to imports. Apart from political and technical challengens, it is generally acknowledged that the main legal hurdle that a CBAM would have to take is to ensure compatibility with the world trade law of the WTO. Against this background, the present policy paper endeavours to explore whether, and if so how, the various CBAM design options that were under consideration could be reconciled with WTO law requirements as developed by panels and the Appellate Body. Different from other publications, we directly compare different CBAM instruments as to their WTO compatiblity, and we moreover also propose certain design modifications for individual instruments so as to strike a better balance with the objective of addressing carbon leakage. At the same time, the paper offers a comprehensive survey of scholarly writings on the topic and potentially relevant WTO jurisprudence. We have furthermore included a small section discussing international political economics. Due to its comprehensive nature, the findings of the paper are also relevant for the actual CBAM proposal of the Commission (published July 14, 2021), and for other jurisdictions contemplating similar measures. This paper has been accepted for publication in the Environmental Law Reporter.","PeriodicalId":122765,"journal":{"name":"LSN: WTO Law (Topic)","volume":"88 4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122649742","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Use Doctrine in Trademark Law: Issues from Trade and Transborder Reputation","authors":"S. Ragavan","doi":"10.2139/ssrn.3839945","DOIUrl":"https://doi.org/10.2139/ssrn.3839945","url":null,"abstract":"Mindful of the current trend within the United States to revive the focus on the use of trademark to determine a mark’s ability to act as a source indicator, in this paper I highlight how focusing on use can create disparate results by examining the role of use when dealing with well-known marks. Hence, this paper implicates the prescriptions from the harmonized trade regime, especially trademark law. In doing so, the paper outlines larger public policy concerns that will ensue especially considering the role of the use doctrine in the context of international harmonization of protection of well-known trademarks. In order to do so, this paper examines protection of foreign marks in two jurisdictions, India and the United States, to identify global public policy concerns which has national implications. The study debunks the myth that harmonization would result in trading partners extending reciprocal treatment. That is, inapposite to the touted position, this paper uses the well-known marks example to outline disparate outcomes that ensue when focusing on use as source indicator. In highlighting how harmonization has not resulted in uniformity or predictability internationally to identify and recognize well-known trademarks, this paper discusses how the lack of predictability under a harmonized system has raised strong public policy concerns as well as economic outcomes that may be detrimental to some markets but beneficial to others. Overall, this paper asserts that a coherent approach will have to necessarily involve some level of flexibilities in the trade regime to determine constituents of fame for a well-known trademark in each jurisdiction.","PeriodicalId":122765,"journal":{"name":"LSN: WTO Law (Topic)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-05-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129348970","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Apocalypse Now: The WTO Dispute Settlement System in the Times of Trump","authors":"L. Gruszczynski","doi":"10.2139/ssrn.3919196","DOIUrl":"https://doi.org/10.2139/ssrn.3919196","url":null,"abstract":"This chapter examines the crisis of the WTO dispute settlement system (DSS) in connection with the blocking of the appointment of new Appellate Body (AB) members by the United States (US). In this context, it investigates the reasons behind this decision and evaluates the reactions of the other WTO Members. It also reviews different solutions which have been proposed /implemented in order to save the AB and the WTO DSS more generally. The article concludes that the objective of the Trump administration was to freeze the WTO DSS, which it considered as a mechanism that could have potentially restricted its freedom to implement its unilateral trade policy, while the specific legal objections were simply instrumental in that process. The chapter recognizes that it is still too early to draw any general conclusions on the stance of the new US administration over the current multilateral trade architecture. However, considering the new American approach to multilateralism in general, one may remain moderately optimistic vis-à-vis the revival of the AB.","PeriodicalId":122765,"journal":{"name":"LSN: WTO Law (Topic)","volume":"64 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126304631","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Key Features and Application of the Most Favoured Nation Principle (MFN) under the GATT/WTO Law","authors":"Gabriel Uchechi Emeasoba","doi":"10.2139/SSRN.3779255","DOIUrl":"https://doi.org/10.2139/SSRN.3779255","url":null,"abstract":"This article argues that although the Most Favoured Nations principle is a hallowed cornerstone of the GATT/WTO Law, its application in practice, with all the available exceptions, does not really appear to provide a level playing field for all nations, as the principle promises.","PeriodicalId":122765,"journal":{"name":"LSN: WTO Law (Topic)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-02-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129241734","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The EU and Belarus. Current and Future Contractual Relations","authors":"Maksim Karliuk","doi":"10.2139/ssrn.3599040","DOIUrl":"https://doi.org/10.2139/ssrn.3599040","url":null,"abstract":"The chapter examines the contractual relations between the EU and Belarus as they stand today, and the future possibilities given the rocky history of relations. The main international agreement between the parties is still a legacy agreement from the Soviet era. Nevertheless, more engagement between parties has been happening, which has already led to new frameworks being established and interest in some continuation seems to be present. The author analyses the effect of international contractual obligations in Belarus, the peculiar case of WTO law being applicable in the country without membership thereof in the organization, the way the Eurasian Economic Union constrains possible deeper engagement of the country with the EU, and the role of values.","PeriodicalId":122765,"journal":{"name":"LSN: WTO Law (Topic)","volume":"2016 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-04-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127507186","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Role of International Court of Justice in Trade and Environmental Disputes","authors":"V. Naik","doi":"10.2139/ssrn.3672128","DOIUrl":"https://doi.org/10.2139/ssrn.3672128","url":null,"abstract":"Nation States cannot survive in isolation. They are under a constant threat of security dilemma and compete to access or gain the sources. Countries are interdependent on one another for economic, social, cultural or institutional purposes. Inter dependency is usually associated with a trend towards cooperation and integration in World affairs. International Law is the law that governs States and other International actors. Established in the year 1945, the International Court of Justice is also commonly referred to as the World Court. The International Court of Justice addresses a wide range of disputes arising between countries. Trade and Environment are two sectors under this law. Trade helps in exchange of resources from one country to another. In the recent times, awareness on environmental protection has increased among the general public. Natural resources are unique to every country. Deterioration of our environment due to human activities causes conflict of interest and gives rise to a dispute at international level.<br><br>Sustainable development has become an unavoidable paradigm that should, as commonly accepted, underpin most, if not all, human actions. It pervades the environmental, social, political, economic, and cultural discourses from the local through to the ‘global’ level by both the public and private sectors. Early origins of an intimate connection between nature preservation (and wise management) and economic development – which is at the heart of sustainable development – can be traced back to the 19th and 18th centuries. But the modern understanding of the concept, and its recognition at the International Community level, is largely the result of a vast UN-led promotion operation.<br><br>This paper deals with the role of International Court of Justice in dealing with Trade and environmental related disputes. It throws light on the mechanism established by the World Trade Organisation in addressing these issues. This paper also gives an overview of important case laws and mentions the provisions under International instruments such as GATT (General Agreement on Trade and Tariff) and NAFTA. The aim of this paper is to address the issues arising out of trade and environment with plausible solutions. This paper talks about the importance of both trade and environment in order to achieve sustainable development.","PeriodicalId":122765,"journal":{"name":"LSN: WTO Law (Topic)","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-12-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114527726","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Politics and Economics of the US-China Trade War","authors":"Deborah L. Swenson, W. Woo","doi":"10.2139/ssrn.3497883","DOIUrl":"https://doi.org/10.2139/ssrn.3497883","url":null,"abstract":"The US declared trade war after substantial defections from the internationalist (in geo-strategy and economics) lobby in US politics to a new coalition between conflict-is-inevitable proponents and anti-globalization activists. Many internationalist businesses changed sides after experiencing disappointments on economic fronts including China's non-compliance with some of its WTO obligations; China's acquisition of foreign technology at lower-than-expected prices; and the serious inadequacies in the WTO's governance of global trade. Many of the disillusioned internationalists have given too much weight to the contribution of globalization to negative developments in the US labor market, and too little weight to the role of powerful capital-biased technological changes and to the inadequacies of state-provided programs for social insurance and human capital formation. Resolution of the trade war and prevention of its frequent occurrence will become more likely when (a) China adopts much greater reciprocity in its economic engagement with the advanced countries despite its status as a developing country under WTO rules; and (b) US stops equating geostrategic competition with economic competition; recognizes that economic dynamism and economic resilience comes from strengthening indigenous innovation capability rather than from holding China back technologically; and institutes social programs to significantly reduce the trauma that is created by frequent job changes. Deep reform of WTO is urgently needed but is unlikely to happen in the medium run. For the medium-run, the US should mobilize country cooperation in regional settings (like the TPP) to introduce policy innovations to serve as templates for a re-designed WTO architecture, and to harness collective market power to be used in future negotiations on WTO reform.","PeriodicalId":122765,"journal":{"name":"LSN: WTO Law (Topic)","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-12-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123683950","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"WTO Dispute Settlement, Investor-State Arbitration and Investment Courts: Exploring Themes of State Power, Adjudication & Legitimacy","authors":"E. Whitsitt, T. Weiler","doi":"10.2139/ssrn.3391894","DOIUrl":"https://doi.org/10.2139/ssrn.3391894","url":null,"abstract":"U.S. assertion of political power in the World Trade Organization (WTO)’s appointment process reminds us of the tenuous balance that exists between state power, adjudication and legitimacy in WTO dispute settlement. Even more fundamentally, it prompts questions about whether reformation of investor-state dispute settlement based on the WTO’s dispute settlement mechanism will solve the legitimacy crisis (real or perceived) that currently threatens the international investment law regime. To address that question this paper explores the contours of state power and adjudication in the dispute settlement mechanisms underpinning the international trade and international investment law regimes. An overview of the historical development of dispute settlement mechanisms in each of these regimes reveals the existence of a long-standing tension between adjudication and sovereign regulatory authority, with the legitimacy of each regime coming under question. Responses to these so-called legitimacy crises vary between the international trade and international investment law regimes and, to some extent, depend on the power states have to respond to such crises. Whether innovations, such as the investment court established in the Comprehensive Economic Trade Agreement between Canada and the European Union, will solve international investment law’s legitimacy crisis remains an open question.","PeriodicalId":122765,"journal":{"name":"LSN: WTO Law (Topic)","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-05-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129856405","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"ClearCorrect: Intellectual Property, 3D Printing, and the Future of Trade","authors":"Matthew Rimmer","doi":"10.2139/SSRN.3379410","DOIUrl":"https://doi.org/10.2139/SSRN.3379410","url":null,"abstract":"This paper considers the relationship between intellectual property and trade in the context of 3D printing. Modern 3D printing has not only disrupted the discipline of intellectual property, but it has also provided profound challenges for the regulation of trade and globalization. Part II provides a case study of the patent dispute between ClearCorrect and Align Technology. The ruling of the Court of Appeals for the Federal Circuit will have larger ramifications regarding the jurisdiction of the International Trade Commission in respect of the digital economy. Part II further considers subsequent patent disputes between the parties before the United States Patent and Trademark Office. Part III considers how the trade dispute between the United States and China will affect 3D printing and examines whether 3D printing will reverse the United States’ pattern of manufacturing offshore. Part III further notes the collateral impact of tariffs upon 3D printing and considers the adoption of 3D printing in China and the issues that may arise in terms of intellectual property ownership, intellectual property infringement, and intellectual property licensing. Part IV considers larger contextual issues raised by international organizations with respect to intellectual property, trade, and 3D printing.","PeriodicalId":122765,"journal":{"name":"LSN: WTO Law (Topic)","volume":"93 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-04-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123901716","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}