For reasons I can no longer remember, I signed up to e-mailed newsletters from the Berkeley Electronic Press featuring open access journals. Aside from the Journal of Globalization and Development which I've commented on before, they also publish The Law and Development Review. The latter journal now has an article which should be of interest to anyone interested in trade and development. Although developing countries have scored major legal victories at the WTO against developed ones--think of Antigua versus the United States over online gaming or Brazil versus the United States over cotton--their luck at obtaining compliance from the trade titans (US/EU) has been decidedly mixed.The problem is that the US and EU have become extremely adept at delaying and watering down sanctions imposed by the WTO's judicial body, the Dispute Settlement Mechanism (DSM). Insofar as developing countries cannot apply remedies against similar products and services given their trade mix (the US doesn't offer substantial online gaming services in Antigua, for instance), they have had to cross-retaliate in accordance with approved WTO remedies. That is, they can apply sanctions in other products or services to compensate for damage caused against them.
In today's article for your consideration, Shamnad Basheer over at the National University of Juridical Sciences in Kolkota, India, submits that cross-retaliation is best done against offending bigwigs by waiving intellectual property (IP) provisions. Remember, developed countries have been very, very keen on enforcing this controversial aspect of the WTO. He suggests escalating sanctions in, you got it, hitting them where it hurts. See what you make of his idea. Below is the abstract; you can access the entire article online after registering as well:
The biblical David vs. Goliath paradigm plays out very frequently in international trade disputes. In 2003, a tiny island state, Antigua and Barbuda (hereafter Antigua) took on the United States (hereafter U.S.) in a WTO (World Trade Organization) dispute, alleging that the U.S. violated the General Agreement on Trade in Services (hereafter GATS) obligations by effectively foreclosing its borders to overseas internet gambling services. It won at both the panel and the appellate levels. However, to this date, it has been unable to secure compliance by the U.S.
This paper considers “cross retaliation" by suspending intellectual property rights under the Trade Related Intellectual Property Rights Agreement (hereafter TRIPS) as a viable remedy for developing countries such as Antigua that often find themselves at the receiving end of WTO inconsistent measures maintained by countries that are economically more powerful.
Towards this end, it proposes a “Tiered IP suspension model," where certain kinds of Intellectual Property (hereafter IP) are targeted first for suspension before others, depending on the ease of objectively ascertaining the harm caused by the unauthorized use of such IP and/or the potential to induce compliance by the defaulting state. Illustratively, copyrights over sound recordings that have established rates for public performance are targeted first. If working with this tier of IP subject matter does not yield desired results, then the complaining state moves on to other IP where it is relatively more difficult to compute the loss caused to the IP owner (such as pharmaceutical patents) but which may be a more powerful tool to induce compliance. Such a model could be useful for a large number of developing countries, such as India and Brazil, that often find that, despite WTO victories, scofflaw states such as the U.S. and EU fail to comply. Towards this end, this paper offers a very concrete “development" oriented international trade law remedy.
