Trips & Trims: General Principles

The Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS Agreement”) is the first WTO agreement requiring Members to establish a relatively detailed set of substantive norms within their national legal systems, as well as requiring them to establish enforcement measures and procedures meeting minimum standards. The TRIPS Agreement is sometimes referred to as the first WTO agreement that prescribes “positive law”. This factor alone might account for a more than typical level of controversy as the Members deal, in many cases, with adopting rather far-reaching changes to their national legal systems. Prior to the Uruguay Round negotiations (1986-1994) that resulted in a well-rounded Agreement on Trade-Related Investment Measures (“TRIMs Agreement”), only a few international agreements provided disciplines for measures restricting foreign investment and provided limited guidance in terms of content and country coverage. The OECD Code on Liberalisation of Capital Movements, for example, requires Members to liberalize restrictions on direct investment in a broad range of areas. The OECD Code’s efficacy, however, is limited by the numerous reservations made by each of the Members.