Study On TRIPS-plus Clauses In Bilateral Investment Treaty

With the era of Post-TRIPS arrival, Intellectual Property (IP) is becoming thestrategic resource for national development and a core element of internationalcompetitiveness. As the IP is making great contribution to the GDP and the economicgrowth in developed countries, they attach great importance to the protection of IPright. Developed countries are attempting to promote high level IP protection throughthe world. While,“TRIPS Agreement” as a global convention to protect IP, it solelyestablishes the minimum requirement for countries on IP. The Bilateral InvestmentTreaty(BIT) and the Free Trade Agreement(FTA) signed between developed countriesand developing countries contain the provisions beyond the “TRIPS Agreement” interms of IP protection:we called “TRIPS-plus provisions”. These provisions reducethe policy space of developing countries stipulated by “TRIPS Agreement”.Furthermore, it improve the standard of IP protection in developing countries.Although China’s overseas investment is increasing, China, as a developingcountry, will be one of a main capital-importing countries for a long period of time. Atthe present stage, our country is in negotiation with the United State, European Unionto sign the BITs. At the same time, a lot of BITs which have already signed with othercountries will expire. In this situation, we should pay attention to the TRIPS-plus provisions when conclude or refresh a BIT, to avoid China assume more obligation inthe field of IP protection.This dissertation mainly discuss the connotation, background, influence ofTRIPS-plus provisions, how it stipulated in BITs and then put forward thecountermeasures China could adopt. This dissertation includes preface, text andconclusion. The text is divided into four chapters: Chapter one firstly makes anoutline of TRIPS-plus provisions and summarize its main features. Then analyze thereason why TRIPS-plus provisions emerge and develop in the Bilateral Treaties.Chapter two take BIT Model of developed countries as example, discussing theTRIPS-plus provisions in BITs. Chapter three focus on the influence of TRIPS-plusprovisions in BIT, mainly includes two aspects: one is the effect its on IP protectionsystem of Post-TRIPS era; the other is the influence on developing countries. Chapterfour present some suggestions to deal with Trips-plus provisions in BIT. On the onehand, point out the deficiences of IP protection provisions in BITs our country havesigned and find out how to improve them. On the other hand, give some advice tohandle the TRIPS-plus provisions which have existed in the BIT.