Articles and Studies

WTO Dispute Settlement Practice Relating to the Agreement on Trade-Related Intellectual Property Rights

Author: 

Frederick M. Abbott

in THE WTO DISPUTE SETTLEMENT SYSTEM 1995-2003, pp. 421-53, F. Ortino & E.-U. Petersmann, eds., Kluwer Law International, 2004

The jurisprudence developed by panels and the Appellate Body (AB) under the TRIPS Agreement during the first six-plus years of implementation reflects a cautious and gradualist approach to interpretation of the agreement. The decisions provide a collective reminder of the importance that WTO Members attach to the use of intellectual property as an instrument of industrial and social policy and the intention of those Members to maintain adequate flexibility to address domestic circumstances. The adoption by Ministers of the Declaration on the TRIPS Agreement and Public Health at Doha on 14 November 2001 was a seminal event in the evolution of WTO law, and will influence jurisprudence under the TRIPS Agreement.

World Trade Organization - TRIPS - Course on Dispute Settlement in International Trade, Investment and Intellectual Property (UNCTAD)

Author: 

Frederick M. Abbott

TRIPS – UNITED NATIONS CONFERENCE ON TRADE AND DEVELOPMENT (UNCTAD), COURSE ON DISPUTE SETTLEMENT IN INTERNATIONAL TRADE, INVESTMENT AND INTELLECTUAL PROPERTY, United Nations Publication, 2003

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 Members deal, in many cases, with adopting rather far-reaching changes to their national legal systems.

The ‘Rule of Reason’ and the Right to Health: Integrating Human Rights and Competition Principles in the Context of TRIPS

Author: 

Frederick M. Abbott

in HUMAN RIGHTS AND INTERNATIONAL TRADE, p. 279, T. Cottier, J. Pauwelyn & E. Bürgi, eds., Oxford University Press, 2003

In August 2001 the first public meeting of the American Society of International Law Project on Human Rights and International Trade (‘Project’) was held at the World Trade Institute in Berne, Switzerland. One session of that meeting was devoted to the relationship between human rights and the WTO Agreement in Trade-Related Aspects of Intellectual Property Rights (‘TRIPS Agreement’). As part of the follow-up to that meeting, the team leading the Project decided it would be useful to consider several ‘case studies’ that would seek more specifically to identify and analyze situations in which human rights and trade rules interact with each other. This study looks at the manner in which human rights may affect the application of competition rules and principles in the context of the TRIPS Agreement.

Dispute Prevention and Dispute Settlement in the Field of Intellectual Property Rights and Electronic Commerce, United States-Section 211 Omnibus Appropriations Act 1998 ('Havana Club')

Author: 

Frederick M. Abbott and Thomas Cottier

in DISPUTE PREVENTION AND DISPUTE SETTLEMENT IN THE TRANSATLANTIC PARTNERSHIP - CASE STUDIES, ANALYSES AND POLICY RECOMMENDATIONS, pp. 429-447, E.U. Petersmann and M. Pollack, eds., Oxford University Press, 2003

As a general conclusion this case-study suggests that the dispute between Pernod Ricard, a France-based multinational distiller and distributor, and Bacardi-Martini, a US-based multinational distiller and distributor, should have been resolved as a private commercial dispute and not as a systemic test of world trade system rules. In this regard, third party arbitration or mediation under the auspices of an alternative dispute settlement forum may have proven quite helpful.

The Doha Declaration on the TRIPS Agreement and Public Health: Lighting a Dark Corner at the WTO

Author: 

Frederick M. Abbott

Journal of International Economic Law, Vol. 5, p. 469, 2002

The adoption by Ministers on 14 November 2001, in Doha, of the Ministerial Declaration on the TRIPS Agreement and Public Health marked a turning point in political and legal relations at the WTO. Developing country Members sent a clear signal that they would take steps to protect and advance their essential interests. These Members demonstrated that by establishing a coalition, and maintaining it throughout a negotiating process, they could prevent themselves from being outmaneuvered by the EU-US block.

WTO TRIPS Agreement and its Implications for Access to Medicines in Developing Countries

Author: 

Frederick M. Abbott

Study Paper 2a, United Kingdom Commission on Intellectual Property Rights, 2002

This study accepts the consensus of experts that developing countries should make use of policy options such as compulsory licensing and parallel importation to increase the supply of low-price medicines and vaccines. The interests of the OECD and its consumers will not be undermined by such action since, inter alia, Pharma is not significantly dependent on profits from developing countries to pursue its research mission.

The Doha Declaration on the TRIPS Agreement and Public Health mandates that the agreement be interpreted in a manner that supports public health interests and promotes access to medicines for all. This study analyzes the TRIPS Agreement in light of that mandate.

The TRIPS-Legality of Measures Taken to Address Public Health Crises: Responding to USTR-State-Industry Positions That Undermine the WTO

Author: 

Frederick M. Abbott

in THE POLITICAL ECONOMY OF INTERNATIONAL TRADE: ESSAYS IN HONOR OF ROBERT E. HUDEC 311, D. Kennedy and J. Southwick eds., Cambridge University Press, 2002

The main WTO law-related focus of this essay is the treatment of compulsory licensing and parallel trade under the TRIPS Agreement, with emphasis on the AIDS crisis confronting Africa, Asia, and other parts of the world. There are two principal reasons for addressing this subject matter in some detail. First, and paramount, is the exigency of the present situation.

Compulsory Licensing for Public Health Needs: The TRIPS Agenda at the WTO after the Doha Declaration on Public Health

Author: 

Frederick M. Abbott

Quaker United Nations Office (Geneva) (QUNO), Occasional Paper 9, February 2002

Paragraph 6 of the Doha Declaration directs the WTO Council for TRIPS (“TRIPS Council”) to address the problems that Members with insufficient or no manufacturing capacity may have in making effective use of compulsory licensing, and to report to the General Council by the end of 2002.

The TRIPS Agreement, Access to Medicines and the WTO Doha Ministerial Conference

Author: 

Frederick M. Abbott

QUNO Occasional Paper No. 7, 2001

On June 19, 2001, the WTO TRIPS Council held its first meeting on the implications of the TRIPS Agreement for access to medicines and public health. In connection with that meeting, and a follow on meeting of July 25, 2001, WTO Members have made a number of specific observations regarding the terms, structure and spirit of the Agreement.

TRIPS in Seattle: The Not-So-Surprising Failure and the Future of the TRIPS Agenda

Author: 

Frederick M. Abbott

Berkeley Journal of International Law (BJIL), Vol. 18, p. 165, 2000

Government trade ministers arrived at that the WTO Seattle Ministerial Conference in late November 1999 without preliminary agreement on the future course of multilateral trade negotiations, and they departed without reaching consensus on a new WTO agenda.

Second Report (Final) to the Committee on International Trade Law of the International Law Association on the Subject of the Exhaustion of Intellectual Property Rights and Parallel Importation

Author: 

Frederick M. Abbott

69th Conference of the International Law Association, July 2000

Study of trade-related aspects of intellectual property rights (TRIPS) has formed an integral part of the work program of the Committee on International Trade Law of the International Law Association (ILA) since its inaugural meeting at the headquarters of the GATT in 1993. In June 1995 in Geneva, the Committee decided to undertake a specific work program regarding the exhaustion of rights and parallel importation.

Political Economy of the U.S. Parallel Trade Experience: Toward a More Thoughtful Policy

Author: 

Frederick M. Abbott

in INTELLECTUAL PROPERTY: TRADE, COMPETITION AND SUSTAINABLE DEVELOPMENT 177-88 (eds. T. Cottier, P. Mavroidis and M. Pannizon eds. 2001), Univ. Michigan Press, World Trade Forum Series Nr. 3Download hereFor the past decade, the Office of the United States Trade Representative (“USTR”), more recently in conjunction with the U.S. Department of State (“State”), has aggressively pursued a trade policy condemning (and threatening) foreign governments that open their markets to parallel trade.

The Political Economy of NAFTA Chapter Eleven: Equality Before the Law and the Boundaries of North American Integration

Author: 

Frederick M. Abbott

23 Hastings Int'l & Comp. L. Rev. 303 (2000)

The North American Integration Regime and its Implications for the World Trading System

Author: 

Frederick M. Abbott

in THE EU, THE WTO, AND THE NAFTA: TOWARDS A COMMON LAW OF INTERNATIONAL TRADE , pp. 169-200, Joseph H. H. Weiler, ed, 2000

This article examines the complex relationship between the institutions and legal rules of the NAFTA and the World Trade Organization.

Distributed Governance at the WTO-WIPO: An Evolving Model for Open-Architecture Integrated Governance

Author: 

Frederick M. Abbott

Journal of International Economic Law, p. 63, 2000

The inter-institutional relationship that has evolved between the WTO and the World Intellectual Property Organization (WIPO) since the conclusion of the Uruguay Round evidences a number of characteristics that might usefully form the basis for relations between the WTO and other international organizations.

NAFTA and the Legalization of World Politics: A Case Study

Author: 

Frederick M. Abbott

International Organization, Vol. 54, No. 3, 2000

This article analyzes the North American Free Trade Agreement (NAFTA) in the context of a broader project examining the causes and consequences of the legalization of world politics. Governments are continuously engaged in the process of negotiating international trade agreements, and in each case negotiators are confronted with choices regarding the best mode of legalization to accomplish their agreed upon objectives. By closely analyzing the choices made by governments over time and correlating those choices with the results achieved (in the context of stated objectives), political scientists and lawyers may aid in directing government negotiators to preferred legalization options.

Technology and State Enterprise in the WTO

Author: 

Frederick M. Abbott

in STATE TRADING IN THE TWENTY-FIRST CENTURY 121, T. Cottier and P. Mavroidis, eds., 1998

Download here:  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1924468 

Prevention and Settlement of Economic Disputes Between Japan and the United States: Part III: Dispute Avoidance and Dispute Settlement: Incomplete Rule Systems, System Incompatibilities and Suboptimal Solutions: Changing the Dynamic of Dispute Settlement

Author: 

Frederick M. Abbott

Arizona Journal of International and Comparative Law, Vol. 16, p. 185, 1999

This article concerns the avoidance and settlement of trade disputes between Japan and the United States. There are three aspects to the question of dispute settlement and avoidance between Japan and the United States that deserve close attention.

The Silhouette of a Trojan Horse: Reflections on Advocate General Jacobs' Opinion in Silhouette v. Hartlauer

Author: 

Frederick M. Abbott and D.W. Feer Verkade

Journal of Business Law, p. 413, September 1998

The European Court of Justice (ECJ) has been asked to decide whether its own seminal jurisprudence on the prerequisites of the completed internal market may be extended into the international arena of trade, or should instead be mandatorily restricted to the European Union (EU) market itself.

First Report (Final) to the Committee on International Trade Law of the International Law Association on the Subject of Parallel Importation

Journal of International Economic Law, Vol. 1, No. 4, pp. 607-636, 1998

The First Report on Parallel Imports approaches the exhaustion/parallel imports question in broad economic terms, asking whether there may be an economic and social welfare benefit to permitting IPRs holders to block parallel imports that outweighs the potential harm to liberal trade.

Reflection Paper on China in the World Trading System: Defining the Principles of Engagement

Author: 

Frederick M. Abbott

in CHINA IN THE WORLD TRADING SYSTEM: DEFINING THE PRINCIPLES OF ENGAGEMENT, pp. 1-43, F.M. Abbott, ed., Kluwer Law International 1998

China's prospective membership in the World Trade Organization is one of the most significant developments relating to international institutions to take place in the past several decades.

The Enduring Enigma of TRIPS: A Challenge for the World Economic System

Author: 

Frederick M. Abbott

Journal of International Economic Law, Vol. 1, Issue 4, pp. 497-521, 1998

This special issue on trade-related aspects of intellectual property rights (TRIPS) is introduced with a perspective that focuses on the urgency of narrowing the gap in living standards between the rich nations and the poor.

WTO Dispute Settlement and the Agreement on Trade-Related Aspects of Intellectual Property Rights

Author: 

Frederick M. Abbott

in INTERNATIONAL TRADE LAW AND THE GATTIWTO DISPUTE SETTLEMENT SYSTEM 415-37 (ed. E.-U. Petersmann), Kluwer Law International, 1997 

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Public Policy and Global Technological Integration: An Introduction

Author: 

Frederick M. Abbott

in PUBLIC POLICY AND GLOBAL TECHNOLOGICAL INTEGRATION 3-13 (eds. F. M. Abbott & D. Gerber) (Kluwer Law International 1997), also published in 72 Chi-Kent L. Rev. 345 (1996-97)

The WTO TRIPS Agreement and Global Economic Development

Author: 

Frederick M. Abbott

in PUBLIC POLICY AND GLOBAL TECHNOLOGICAL INTEGRATION 39-65 (eds. F. M. Abbott & D. Gerber) (Kluwer Law International 1997), also published as 72 Chi-Kent L. Rev. 385 (1996-97)

The optimal approach to creating and maintaining an equitable balance in the international IPRs system will likely involve a combination of approaches.

Foundation Building for Western Hemispheric Integration

Author: 

Frederick M. Abbott

Northwestern Journal of International Law & Business, Vol. 17, 1996-97

The creation of the NAFTA and the negotiation of the FTAA are profoundly important political and economic developments for the United States, just as the creation of the European Economic Community and the widening of the European Union are profoundly important political and economic developments on the other side of the Atlantic.

From Theory to Practice:The Second Phase of the NAFTA Environmental Regime

in Enforcing Environmental Standards: Economic Mechanisms as Viable Means? 451-478 (R. Wolfrum ed., 1996) (Springer-Verlag)

This paper addresses the impact of the NAFTA on environmental enforcement in North America, and on the environment in North America.

The Maastricht Judgment, the Democracy Principle, and US Participation in Western Hemispheric Integration

in German Yearbook of International Law, Vol. 37, p. 137, 1994

The Maastricht Judgment of the German Constitutional Court has caused a considerable stir within the German legal community.

Regional Integration Mechanisms in the Law of the United States: Starting Over

Author: 

Frederick M. Abbott

Indiana Journal of Global Legal Studies, Vol. 1, 1993, at 155-84

This contribution will focus on the legal system of the United States and will consider the recent bias of the U.S. Congress toward according a non-self-executing character to RIMs to which the United States has become party.

NAFTA and the Future of United States—European Community Trade Relations: The Consequences of Asymmetry in an Emerging Era of Regionalism

Author: 

Frederick M. Abbott

Hastings International and Comparative Law Review, Vol. 16, 1993, at 489-526

This article will set out the legal context of the emerging trading relationship between the European Community and NAFTA.

The NAFTA Environmental Dispute Settlement System as Prototype for Regional Integration Arrangements

Author: 

Frederick M. Abbott

4 [1993] Y.B. Int'l Envtl. L. 3 (Günther Handl ed., 1994) (Oxford Univ. Press)

This article addresses NAFTA's environment-related dispute settlement mechanisms and how these might serve as a prototype for other regional integration efforts.

Regional Integration and the Environment: The Evolution of Legal Regimes

Chicago-Kent Law Review, Vol. 68, 1992, pp. 173-201

This Essay considers one aspect of the regional integration phenomenon, examining it in the specific context of its present and potential impact on regimes for the protection of the environment.

Trade and Democratic Values

Author: 

Frederick M. Abbott

Minnesota Journal of Global Trade, Vol. 1, No.1, p. 9, 1992

This essay concerns the fundamental principles that will guide congressional deliberations regarding trade policy in the coming months and years.

The Scope of U.S. Senate Control Over the Conclusion and Operation of Treaties

Author: 

Stefan A. Riesenfeld and Frederick M. Abbott

in PARLIAMENTARY PARTICIPATION IN THE MAKING AND OPERATION OF TREATIES: A COMPARATIVE STUDY 261, S. Riesenfeld & F. Abbott eds., Martinus Nijhoff 1994, also published in 67 Chi.-Kent Law Review No. 571, 1991

This article will briefly describe the basic allocation of the treaty power in the United States and the status of treaty law in the municipal legal system. These matters are the subject of a number of excellent studies by American and foreign scholars. Our main concern, however, is with a particular feature of the constitutional landscape-the role which the Senate plays in the treaty-making process through the attachment of qualifications to resolutions of ratification; namely amendments, reservations, understandings, declarations, and provisos. We are concerned with the effect these conditions are accorded by the President, United States courts, and the international community.

GATT and the European Community: A Formula for Peaceful Coexistence

Michigan Journal of International Law, Vol. 12, No. 1, 1990

This article addresses the relationship between the GATT, the European Community and other RTAs as and when trade in services and other 'new areas' are incorporated into the GATT framework.

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