The Relationship Between Intellectual Property Provisions Of Free Trade Agreement And TRIPS

This thesis mainly focuses on the relationship between intellectual property provisions of free trade agreement and TRIPS. Using U.S.-Australia FTA as an example, by summarizing the IP provisions from the IP Chapter and Investment Chapter of U.S.-Australia FTA, this thesis analyze the three kinds of relationship between them and provides the legal norms that can be used to harmonize the two different treaties, with expectation that this thesis can shed some light on future Sino-Australia FTA negotiations, Sino-U.S. FTA negotiations and other related bilateral and multilateral negotiations on international agreements. U.S.-Australian FTA, advocated by the U.S., is the after product of the TRIPS era, as well as the typical TRIPS-Plus FTA which is respected by most developed countries.There are three main relations between provisions of the protection of intellectual property rights in U.S.-Australian FTA and TRIPS: FTA complying with TRIPS, FTA improving the rights and obligations of TRIPS and FTA eliminating TRIPS flexibility. U.S.-Australian FTA thus is characterized as protecting the interest of IP exporting countries, applying the U.S. Model, resulting to anti American emotion, weakening policy space of IP importing countries. Most importantly, it can also lead to the conflict of laws between TRIPS, other multilateral international intellectual property treaties and TRIPS-Plus FTAs.The rules of interpretation of treaty law, general conflict rules of international law, conflict rules in TRIPS and TRIPS-Plus FTAs, may provide a possible method for resolving the problem.When FTA complies with TRIPS, especially when TRIPS-Plus FTA has an open IP protection provision while TRIPS has a specific IP protection provision, then the rules of interpretation of treaty law can play an important role. When FTA improves the rights and obligations of TRIPS, or FTA eliminates TRIPS flexibility, then proper consideration shall be given to general conflict rules of international law, conflict rules in TRIPS and TRIPS-Plus FTAs. Conflict rules in TRIPS and TRIPS-Plus FTAs are lex specialis and therefore shall be given priority. However, there are still limitations and exceptions for this principle such as “nothing in the TRIPS-Plus FTA shall violate other TRIPS provisions”. General conflict rules of international law can act as an vital compliment to other legal methods. Lex posterior derogat legi priori principle and lex specialis derogat legi generali principle have requirements such as “nothing shall confront with the effective implementation of the purpose and principle of TRIPS”..