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Intellectual property (IP) occupies a central, if actively contested, place in international trade relations. The world's two largest trading nations, China and the United States, are seemingly at loggerheads over how effectively IP should be protected. Australia recently defended its tobacco plain packaging measures against complaints from four developing nations over how to reconcile IP protection with the pursuit of the wider policy goal of public health. Disputes over IP now seem inevitable, as the interests lying behind this once recondite, technical area come to the fore in assessments of national economic and policy interests. But will these disputes be managed within the framework of the rule of law, or does economic and political power ultimately prevail? This is not a new question. From the mid 1980s, a growing perception that inadequate or unbalanced IP protection was undercutting the economic interests of major economies made disputation about IP inevitable. The resulting tensions were a critical factor behind the inclusion of IP standards in the World Trade Organization (WTO) system of multilateral trade law, in the form of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement). Rather than resolving disputes over IP protection through bilateral wrangling and unilateral pressure, the rule of law would be applied in a predictable, transparent and equitable way through the multilateral dispute settlement mechanism maintained by the WTO, building on the major conventions separately administered by the World Intellectual Property Organization (WIPO).
Yet TRIPS was followed by a sharp rise in the conclusion of bilateral and regional trade and investment agreements that establish alternative or complementary sets of standards on IP and mechanisms to resolve IP disputes. The result is an intricate array of overlapping substantive standards and parallel forums for dispute settlement. And the very notion of settling disputes with reference to a stable and agreed body of law faces a direct challenge. This subject enables the student to navigate this complex legal landscape and to deal with its consequences from the point of view of dispute settlement practice, from the perspective of legal principle and public policy impact, and in terms of international governance and the management of trade and political relations. This will cover key international cases, strategies for treaty interpretation and approaches to reconciling IP protection with other policy imperatives and with other legal and regulatory systems.
The lecturer offers insights from extensive experience as a senior official in both the WTO and WIPO, as an Australian official engaged in litigation and negotiation, as practitioner of IP law, and as a legal and policy analyst and scholar.
Principal topics include:
- A practical anatomy of international intellectual property conventions, standards and institutions, from the creation of the major multilateral systems within WIPO and the WTO, to the current trend towards bilateral and regional deals
- The political economy of international intellectual property: the economic, political and technological factors driving disputation over IP and the creation of competing dispute settlement mechanisms, and the contemporary challenges for the continuing rule of law as the basis for containing and resolving disputes
- The core principles of international IP law: IP principles and the idea of 'balance', the preservation of 'space’ for domestic law and policy, the integration of trade law and public policy principles into international IP law, and integrating human rights perspective into readings of IP conventions.
- The distinctive features of international IP dispute settlement: cause of action, sources of law, remedies and challenges for treaty interpretation
- Dispute settlement practice and emerging TRIPS Agreement jurisprudence under the WTO: a survey of TRIPS disputes and the use of TRIPS in cross retaliation, and a close analysis of landmark disputes, including the recent tobacco plain packaging cases
- The evolving architecture of bilateral and regional trade and investment agreements covering IP: the practical implications for treaty interpretation, for the initiation, management and settlement of IP disputes in multiple fora, and for domestic law and policy
- Compliance and monitoring of compliance: the institutional mechanisms, and the sources of information for practitioners and government officials, for legal and policy analysts and for scholars.
Intended learning outcomes
A student who has successfully completed this subject will:
- Have acquired a thorough practical and theoretical knowledge of the structure and institutions concerned with international IP law, of international practice and procedure for settling disputes concerning IP, and of the substantive principles and core content of international IP law
- Be familiar with the principles and distinctive aspects of treaty interpretation for IP provisions considered in an international trade law setting, and be capable of applying these principles both in a practical context, and in research and analysis
- Have the capacity to analyse and advise upon the legal and policy implications of the evolving WTO dispute settlement jurisprudence concerning the WTO TRIPS Agreement, and to analyse and advise upon the emerging multipolar landscape of international IP, the emerging challenges for the legal system, and its implications for dispute settlement practice, for international trade and political relations, and for the substantive law of IP
- Be able to reflect critically on the implications of current developments for trends in IP law and policy, for public policy choices in other domains, for the management of trade relations, and for international governance of IP at the multilateral and bilateral levels.
Last updated: 11 February 2021