Challenging TRUPS-Plus Agreements

The trade dispute settlement mechanism provided by GATT1994Article XXIIIis the most characteristic system in the GATT/WTO as a whole. One of its traits is the‘Non-violation complaint’. A World Trade Organization（WTO） non-violationcomplaint is one where an agreement has not been breached, but the complainantalleges an expected benefit under the agreement has been abrogated.When the TRIPS Agreement came into force non-violation complaints were notavailable for TRIPS disputes. This position was to be reviewed. Non-violationcomplaints remain unavailable for TRIPS disputes. In the early days of TRIPS theexclusion of non-violation disputes seemed rational because of the unique nature ofTRIPS, among WTO agreements. The TRIPS Agreement requires members toimplement minimum standards of intellectual property protection in their nationallaws. Members therefore have to complaint could be initiated. Consequently, it wasnot logical to look for any notion of expected benefit beyond the wording of theminimum standards.However, TRIPS permits members to have greater standards and many membershave agreed to higher standards through free trade agreements. These TRIPS-plusstandards have arguably undermined expected benefits that should flow from TRIPS,especially for users of intellectual disputes available for TRIPS, especially for usersof intellectual disputes available for TRIPS disputes from the perspectives of both theusers and owners of intellectual property rights.This analysis includes a discussion of whether TRIPS-plus free trade agreementsundermine expected benefits of the TRIPS Agreement and should thus be the subjectof a non-violation dispute. Chapter one discusses what are non-violation disputes ingeneral, including the concept and the historic background of non-violation dispute,. Chapter two assesses the role of non-violation disputes in the TRIPS Agreementcontext. This includes discussion of what non-violation disputes about the TRIPSAgreement look like, and the reasons why they were not available for TRIPS disputes.Chapter three discusses what potential non-violation disputes might look like fromthe viewpoint of users and owners of intellectual property rights facing to increasedstandards through TRIPS-plus FTAs.