Intellectual Property in the WTO Volume II
Edited by Carlos M. Correa
Chapter 1: The Applicability of GATT Jurisprudence to the Interpretation of the TRIPS Agreement
Susy Frankel 1. Introduction To assess the applicability of interpretations of GATT1 to the TRIPS Agreement2 it is necessary to examine the relationship between those agreements. The relationship between the TRIPS Agreement and other WTO agreements is complex. Structurally, the relationship is that the GATT, GATS3 and the TRIPS Agreement are the main annexes of the WTO Agreement.4 The TRIPS Agreement preamble, among other broad statements of intention, says that the members recognised the ‘need for new rules and disciplines concerning . . . the applicability of the basic principles of GATT 1994’ to the TRIPS Agreement. When the TRIPS Agreement was first in force, this preamble made sense as there were established practices and understandings about the operation of GATT 1947. The new WTO Agreement, including TRIPS, was established to develop and change the original GATT 1947, particularly the process of dispute settlement. However, GATT disputes were the known source of discussion of trade principles and WTO panels and the Appellate Body referred to them, particularly in the earlier disputes brought to the WTO.5 1 General Agreement on Tariffs and Trade 1994, Marrakesh Agreement Establishing the World Trade Organization (‘WTO Agreement’), Annex 1A, Article XX, 15 April 1994, 1867 UNTS 187, 33 ILM 1153 (1994) (‘GATT’). 2 Agreement on Trade-related Aspects of Intellectual Property Rights, 15 April 1994, Marrakesh Agreement Establishing the World Trade Organization (‘WTO Agreement’), Annex 1C, 33 ILM 1197, 1198 (1994) (‘TRIPS Agreement’). 3 General Agreement on Trade in Services, WTO Agreement, Marrakesh Agreement Establishing the World Trade Organization...
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