Research on the Legal Issues Caused by Cross-Retaliation under TRIPS Agreement
|Keywords||Cross-Retaliation TRIPS Agreement Conflict of Norms|
Retaliation is the last resort given to prevailing parties under the WTO dispute settlement mechanism. Nevertheless, due to the asymmetry of economic power between developing countries and developed countries, the former could not make use of the last resort effectively. Compared with traditional retaliation, retaliating in intellectual property domain against developed countries would be more powerful, attributing to its least negative economic effect on retaliating countries and significance of IP industries on most of developed countries’ economy. Cross-retaliation under TRIPS agreement would validly induce compliance of violating party and enhance social welfare of retaliating countries as well. However, owing to distinctive features of IPRs, suspending obligations under TRIPS would encounter various legal and practical difficulties. Thus, based on the plight of cross-retaliation under TRIPS agreement, this paper analyzes legal issues caused by the resort from two perspectives of international law and national law, and put forward several appropriate suggestions, for the purpose of alleviating difficulties of implementation and providing theoretical support for developing countries (especially those least developed countries) who intend to request authorization for cross-retaliation.Apart from preface and conclusion, the paper is composed of three chapters.The first chapter demonstrates an overview of WTO cross-retaliation. It mainly discusses the basic features and authorizing procedures of cross-retaliation, explains the feasibility and rationality of cross-retaliation in the light of three WTO dispute cases, and makes an objective assessment on the effectiveness of cross-retaliation under TRIPS agreement.The second chapter specifically analyzes the legal conflicts between suspension of obligations under TRIPS and international agreements. On the basis of the theory of conflict of norms in the applicable law, it elaborates conflicts between suspension of obligations under TRIPS agreement and other international intellectual treaties, free trade agreements and bilateral investment treaties, and then proposes four conflict solutions, including application of lex posterior rule, specific conflict clauses, principle of estoppel and doctrine of countermeasures.The last chapter explores the legal and practical difficulties the prevailing countries may confront with when they plan to implement cross-retaliation under TRIPS agreement, and presents several suggestions to effectively implement the retaliation on a critical standpoint.