The TRIPS Agreement
T. N. SRINIVASAN
It is indeed an honor for me to participate in celebrating Robert Hudec's contributions. Bob and John Jackson have long been the icons of International Trade Law for me. Having interacted with him both as a participant in the Bhagwati–Hudec project on Fair Trade and Harmonization, and as an avid reader of Bob's several contributions relating to Developing Countries and the GATT, I have come to appreciate the intellectual rigor and precision of Bob's analyses.
This article addresses and expands on points made by Frederick Abbott, both in this essay and in his other writings on the TRIPS agreement.
I have argued (Srinivasan, 1998) that it was a colossal mistake to have included TRIPS in the WTO, as one of the agreements that was part of the single-undertaking framework of the Uruguay Round agreement, for at least two reasons. First, whatever the merits of strengthening intellectual property right (IPR) protection around the world, incorporating IPR in the WTO framework by merely asserting that such protection is trade-related, seems primarily for the purpose of legitimizing the use of trade policy instruments to enforce IPR protection. After all, there already exists an institution, namely the World Intellectual Property Organization (WIPO), an institution specializing in IPR. It would have been the most appropriate forum to negotiate on IPR issues. The argument that WIPO has no effective mechanism for enforcing agreement, is not persuasive; it only means that its existing enforcement mechanisms have to be beefed up and new ones created, if needed. In a book with many articles written by lawyers, I hesitate to add that WIPO is at present dominated by lawyers and lacks an economic perspective on IPR. Still, its weak enforcement capability and the absence of economic expertise do not imply that WTOsanctioned trade policy instruments are the next best enforcement mechanism.
The second, and perhaps the more serious reason is that now that IPR is in the WTOontheostensiblegroundofitstraderelatedness, thetaskofkeepinglaborand environmental standards out of the WTO is becoming increasingly difficult. Developing countries, such as Brazil and India, initially refused even to discuss IPR, let alone consider its inclusion in the negotiating agenda of the Uruguay Round. But they eventually capitulated. Had they agreed to discuss IPR, but insisted on the discussions and possible negotiations taking place in WIPO, perhaps the inclusion of TRIPS in the WTO could have been avoided. In any event, the ongoing and mandated review of TRIPS should be used, if not to agree on taking TRIPS out of WTO