A guest post from Henning Grosse Ruse - Khan:
"The TRIPS Agreement is probably the only WTO Agreement which contains explicit textual expression of its object and purpose in its Articles 7 and 8. At the same time, it has a lot of provisions with (constructive) ambiguities where a treaty interpretation focused on the ordinary meaning may not lead to satisfactory results. Given that all WTO Members stressed the role of Article 7 and 8 for interpreting TRIPS in the Doha Declaration on TRIPS and public health, one might expect these provisions to play a major role. Anyone familiar with IP related disputes in the WTO however knows that this is not the case.
In a recent paper (http://ssrn.com/abstract=1939859), I analyse whether and how WTO Panels and the Appellate Body have, in interpreting the TRIPS Agreement, relied on Article 7 and 8 as primary textual expressions of the object and purpose of TRIPS. My hypothesis is that Panels give insufficient, if any, role to the integration provisions of Art.7, 8 TRIPS in interpreting TRIPS. The empirical analysis confirms this. While there is only a comparable limited number of TRIPS cases (7% of all WTO complaints), the 12 decisions issued contain in total 60 instances where individual TRIPS provisions or terms where subject to interpretation. In only 14 cases WTO adjudicators have relied on ‘object and purpose’ – compared to 42 times where ‘ordinary meaning’ and 37 times where ‘context’ where utilised. Those 14 cases break down in only two cases were Articles 7 and 8 have been applied; another three where they have been merely acknowledged; and nine where other objectives (of TRIPS or its provisions) have been applied. In addition, there are 13 cases where treaty object and purpose are merely mentioned as being relevant for the interpretation exercise. This paints a picture of a quantitatively limited, and qualitatively rather arbitrary use of TRIPS object and purpose in the interpretation exercise.
In the paper, I try to offer some reasons for this (such as WTO members not raising those provisions in their pleadings) and I would be happy to hear any suggestions from IELP blog readers."
