RECOGNIZING PUBLIC GOODS IN WTO DISPUTE SETTLEMENT: WHO PARTICIPATES? WHO DECIDES?: THE CASE OF TRIPS AND PHARMACEUTICAL PATENT PROTECTION

Abstract

The question of how to produce ‘global public goods’ in a world of sovereign states with divergent norms and preferences, reflecting differences in economic development levels, is increasingly on the international policy agenda. This question raises issues not only for political decision-making but also for judicial interpretation of existing international agreements. This article analyzes this fundamental question in the context of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) of the World Trade Organization (WTO), with particular emphasis on patent protection for pharmaceutical products. The TRIPS Agreement’s provisions raise concerns over at least three public (or quasi-public) goods in this area: the generation of new knowledge, the provision of public health, and the maintenance of rules fostering open trade and competition. WTO judicial panels charged with resolving disputes regarding patents on medicines must determine whether to defer to national sovereignty, multilateral negotiations, or their own interpretations in balancing among these objectives. Thus, questions of ‘who participates’ and ‘who decides’ will be critical in this determination. The article notes structural weaknesses in the ability of developing countries to participate meaningfully in the WTO judicial process and offers suggestions for making their participation more meaningful so as to protect their interests.

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