Trade Costs and Shadow Benefits: EU Economic Partnership Agreements as Models for Progressive Development of International IP Law

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in EU BILATERAL TRADE AGREEMENTS & INTELLECTUAL PROPERTY FOR BETTER OR WORSE? (eds. J. Drexl, H. Grosse Ruse-Khan and S. Nadde-Phlix, Max Planck Institute Studies (Springer 2013 forthcoming) 

This paper addresses the specific question whether “development-friendly” provisions incorporated in recent European Union (EU) economic partnership agreements (EPAs) may serve as models for the progressive development of international intellectual property law. Other articles in this volume strongly suggest that the intellectual property (IP) provisions represent a concession or cost for developing country parties in favor of the EU, including generally by eliminating flexibility to develop and implement industrial policy. The EU may view incorporation of the objective of sustainable development, enhanced protection of geographical indications (GIs), adherence to the Madrid System treaties and/or references to transfer of technology as representing benefits or gains for developing country parties. The general objective of sustainable development already is recognized in the Agreement establishing the World Trade Organization and various other international instruments, and its incorporation in EPAs does not confer material supplemental benefits on developing country parties. The EPA between the EU, on one side, and Colombia and Peru, on the other (EU/CP EPA), also incorporates references to sustainable development relating to protection of biodiverse resources. However, these references do not commit the EU beyond what it has already accepted in multilateral forums or internal legislation. While developing countries may (or may not) benefit from enhanced protection of GIs depending on their particular situation, the list of GIs subject to protection under the EU/CP EPA is weighted very heavily in favor of EU products, suggesting that EU producers will gain substantially more from the agreement than Colombian or Peruvian exporters. The latter countries will also bear costs associated with internal displacement of agricultural products. Developing country parties may gain from adherence to the Madrid System agreements because such adherence is helpful to small and medium-sized enterprises. But these countries do not need an EPA to undertake such adherence. Finally, the technology transfer provisions in the EPAs are framed in hortatory terms, and lack concrete funding mechanisms. In the absence of concrete funding commitments, it is difficult to construe these provisions as providing material benefits. In sum, the provisions that might be considered “development friendly” appear insufficient to offset the loss of flexibility and specific concessions on IP made by developing countries in the EPAs, and generally do not lend themselves as models for the progressive development of international IP law.