Human Rights as Objective

The Marrakesh Treaty aims at a better realisation of the human rights of visually impaired people. In Helfer and co-authors’ formulation, the treaty’s ‘overarching object and purpose is to promote the human rights of individuals with print disabilities by expanding their access to copyrighted works consistently with existing rules of international IP law’.Footnote ¹⁹ The qualification of the object and purpose of the Treaty is key for its interpretation according to the VCLT canon.Footnote ²⁰ Several human rights are especially relevant: freedom of expression, the right to education, the right to science, and non-discrimination.Footnote ²¹

As expressed by the second recital of the Preamble, the objective is to ensure the ‘complete development of persons with visual impairments or with other print disabilities’, ‘complete’ being defined as ‘on an equal basis with others’. This complete development includes all the capabilities that a person should possess in terms of accessing information, communicating information, and participating in private, professional, and public activities. This is the general objective formulated by the first recital of the Preamble, directly referring to international human rights law: the full and effective participation and inclusion in society, through the principles of non-discrimination, equal opportunity, and accessibility. According to Grosse Ruse-Khan’s summary, human rights are not only mentioned in the Marrakesh Treaty, but they are the Treaty’s very raison d’être.Footnote ²²

International Human Rights Law Obligations

For States, the Marrakesh Treaty is an important step towards fulfilling human rights obligations. For the sake of this brief analysis, the focus will be put on the duties of the CRPD and of the human right to science.

The CRPD is directly mentioned by the first recital of the Preamble of the Marrakesh Treaty. Article 30 of CRPD requires States to ‘recognize the right of persons with disabilities to take part on an equal basis with others in cultural life’ and to ‘take all appropriate measures to ensure that persons with disabilities’, inter alia, ‘enjoy access to cultural materials in accessible formats’ (Article 30(1)a of CRDP).Footnote ²³ More specifically for IP policy, Article 30(3) of CRPD specifies that States ‘shall take all appropriate steps, in accordance with international law, to ensure that laws protecting intellectual property rights do not constitute an unreasonable or discriminatory barrier to access by persons with disabilities to cultural materials’. The specific mention of ‘in accordance with international law’ clarifies that this obligation shall be fulfilled while respecting, among other obligations, the TRIPS.

The CRPD Committee has called States to ratify and implement the Marrakesh Treaty as a way to fulfil their CRPD obligations. In two General Comments, the Committee has addressed the importance of the Marrakesh Treaty. In 2014, in its General Comment on Accessibility (General Comment 2), it recalled the obligations of Article 30 of CRPD, underlying the importance of the Marrakesh Treaty for ‘people with disabilities living abroad or as a member of a minority in another country and who speak or use the same language or means of communication, especially those facing challenges accessing classic print materials’.Footnote ²⁴

In its General Comment on the Right to Education (General Comment 4), the Committee has called on States to urgently ratify and implement the Marrakesh Treaty.Footnote ²⁵ This ratification shall be complemented by two main types of measures. Firstly, States must invest in the digitisation of resources and the use of digital technologies for the sake of making educational resources available to all students, including those with disabilities.Footnote ²⁶ Secondly, States should take several measures to ensure that educational resources are made available in an accessible format. In addition to General Comments, reviews of national reports also note the importance of ratifying and implementing the obligations of the Marrakesh Treaty.Footnote ²⁷

In addition to the CRPD, the Marrakesh Treaty is interesting from the perspective of the right to science. On the one hand, the equal participation ambition of the Marrakesh Treaty is relevant for the field of scientific activities understood broadly. This includes the capacity to access scientific resources and, more generally, print resources, which are essential for public debate. As Chapter 5 argues, this participation is crucial for a non-dominating decision-making process when it comes to identifying priority needs and research focuses. Moreover, the non-participation of visually impaired people in this process might lead to de-prioritisation or outright ignoring of their specific problems, for instance, from the perspective of the right to health.Footnote ²⁸

Overall, the right to science framework is about reinforcing the capacity of every citizen to both access the benefits of science and actively participate in scientific production. Both objectives are more easily fulfilled thanks to the mandatory exceptions prescribed by the Marrakesh Treaty.

Interface between IP and Human Rights

With respect to the interface between IP and human rights, the Marrakesh Treaty could be used to exemplify both the coexistence and enhancement approaches. This reflects the hybrid character of the Treaty, combining IP and human rights dimensions.Footnote ²⁹

From the perspective of the coexistence approach, the IP rules must be interpreted in a way that recognises the intrinsic relevance of societal interests in the IP regime.Footnote ³⁰ In that coexistence perspective, the Marrakesh Treaty mandates that States use their regulatory margin of action in a specific way (mandatory exceptions to be included in national legislation). In that sense, human rights are internalised within the IP regime through the interpretation of its foundational norms.Footnote ³¹

The Marrakesh Treaty could also be analysed from an enhancement perspective. As Helfer explains, an enhancement perspective focuses on the contribution that the IP regime could deliver for the human rights regime.Footnote ³²

Applying this approach to the Marrakesh Treaty, the first step entails identification of the minimum entitlements required by visually impaired people. Both the CRPD and the human right to science are briefly addressed. Further human rights (such as those discussed in Chapter 5) could indeed be added. As will be discussed later, these human rights can be interpreted as the general ambition to protect visually impaired people against domination (i.e., to secure freedom). The duties mentioned can be integrated into the framing advocated here about the State’s obligations to secure justice for its population and beyond its borders.

The second step is about crafting mandatory limitations and exceptions to secure these entitlements. Further policy mechanisms might indeed be used in addition to these IP regulations. The main point is to use the flexibilities of international copyright law to secure human rights in domestic legislation. In the context of the Marrakesh Treaty, Helfer and co-authors describe the framing of these exceptions in human rights terms as a ‘game changer’, writing, ‘a human rights frame challenged the traditional structure of multilateral intellectual property agreements, in which private economic rights are broad and mandatory, while public interest exceptions and limitations are narrow and discretionary’.Footnote ³³ Similarly, for Harpur and Suzor, ‘the greatest achievement of this treaty, however, is not in its immediate impact, but in the framework it establishes’.Footnote ³⁴ This framework is about the efficiency of the digitisation effort required by the CRPD and the cross-border circulation of these print resources with respect to the human rights of its target audience.Footnote ³⁵

Object and Purpose of the Marrakesh Treaty

Firstly, the Marrakesh Treaty’s raison d’être is the protection of the human rights of people with visual disabilities. This clear object and purpose of the Treaty recalls that States have human rights duties to fulfil for their own populations (following the CRPD and other human rights treaties).Footnote ⁵³ In the case of visually impaired people, the argument is both sufficientarian (securing access to resources that are required for a decent life) and republican (empowering individuals to be active citizens and to prevent domination exercised upon them by private entities or the State). As mentioned earlier, this qualification echoes the ‘moral case’ that has been made by the World Blind Union and its allies during the negotiations of the Marrakesh Treaty.Footnote ⁵⁴ This case shares important commonalities with the case for the right to education and, more broadly, access to relevant resources for basic capabilities.Footnote ⁵⁵

In addition to domestic justice obligations (and the corresponding human rights duties), States also have international justice obligations (and the corresponding human rights responsibilities). The Marrakesh Treaty, read in conjunction with the CRPD, recalls that States with important resources (in economic and know-how terms) have a responsibility to support other States in fulfilling their own human rights duties. This bears both upon the required digitisation effort and upon the facilitation of cross-border circulation of resources in an adequate format. This could be extended to the support of authorised organisations, such as public libraries, to make print resources available to an international audience.Footnote ⁵⁶

The Marrakesh Treaty explicitly elevates human rights as its core objective. The point is a question of the degree of explicitness. The junction between human rights and IP protection is already present in the current TRIPS (through the interpretation of the concepts entailed by Articles 7 and 8 of TRIPS), but the Marrakesh Treaty exemplifies what a more explicit junction could look like.

In that sense, it exemplifies how a more balanced TRIPS should be revised, either through a formal amendment or through a Doha-inspired Declaration. For instance, the project ‘Intellectual Property Rights in Transition’ (IPT) initiated by Levin and Kur is an example of a project formulating concrete TRIPS amendments with the explicit objective to ‘address at least some of the urgently felt and widely articulated needs for re-adjustment of the system, and to highlight, in a concise form, possible ways to overcome the perceived deficiencies’.Footnote ⁵⁷ Several amendment proposals to the TRIPS would give human rights a clearer stance in the TRIPS’ foundational norms. For instance, Article 7 of TRIPS could be amended by adding that the ‘protection and enforcement of intellectual property rights should: (a) contribute, in a manner conducive to social and economic welfare: (i) to cultural development and the enhancement of creativity, taking due account of the larger public interest, particularly in education, research and access to information and knowledge for all (…)’.Footnote ⁵⁸

Two Paradigms on Disabilities

According to Harpur and Suzor, the human rights-based obligations that the Marrakesh Treaty prescribes must be conceived of as part of a new paradigm of disability policy. Harpur and Suzor distinguish between two paradigms to conceptualise this shift in responsibility, the first being the paradigm of ‘tolerance’. It sees disability rights through the lens of ‘tolerance’: ‘Through this paradigm, disability rights have been seen as a limited exception to the rights and interests of copyright owners.’Footnote ⁵⁹ Limited exceptions have enabled modest, ad hoc effort of digitisation that have been kept for a domestic public. Because of the legal uncertainty created by the copyright regime (mainly on the extent and permissibility of exceptions), States have systematically deferred to IPRs.Footnote ⁶⁰ Fundamentally, this tolerance/exception paradigm relies upon a concept of disability that is akin to a stroke of bad luck, which has in turn led States to ignore the adoption of measures in favour of strong exceptions for visually impaired people.

In contrast, the second paradigm, ‘social model’, relies upon a concept of disability that casts specific barriers as socially constructed.Footnote ⁶¹ If barriers are socially constructed (such as through the existing copyright regime), ‘the responsibility for providing access accordingly rests squarely on policymakers’.Footnote ⁶² Accordingly, the CRPD expresses the conviction that a new approach to disability policies shall ‘promote their [persons with disabilities; JR] participation in the civil, political, economic, social and cultural spheres with equal opportunities, in both developing and developed countries’ (Preamble CRPD)’. The CRPD creates obligations for States to proactively revise their laws and policies with the objective of equal participation for all.

This ‘social model’ paradigm represents an important shift in the responsibility of States. Tolerating detrimental effects of a given legal regime on visually impaired people (in the case of the Marrakesh Treaty) already constitutes acting according to one’s obligations.Footnote ⁶³ Expressed positively, as per Helfer and co-authors, ‘this human rights reframing, and the evidence supporting it, helped the Treaty’s proponents to build consensus around a simple yet compelling idea – that intellectual property should be used to reduce, not exacerbate, inequality’.Footnote ⁶⁴ The Marrakesh Treaty hence calls on States to utilise the possible flexibilities of the current copyright regime and to adapt their domestic laws by including mandatory exceptions.

Indeed, revising domestic copyright law might not prove sufficient. The activation of specific organisations that are involved in providing access to relevant resources is key. As for the authorised entities in the Marrakesh Treaty, this type of mobilisation is part of a set of measures that States can/must put in place to secure access to resources. These measures could indeed include market-based or fee-based measures of access, but, where the market is failing to secure access to relevant resources, additional and complementary measures must be put into placeFootnote ⁶⁵. The duty of the State could hence be fulfilled by providing subsidised or facilitated access or by supporting organisations making this access a reality (e.g., civil society organisations).

This ‘social model’ reinforces and completes the argumentation proposed in the previous section. If States accept the obligations prescribed by the CRPD – and the underlying ‘social’ paradigm that Harpur and Suzor have identified – these human rights obligations should be used to interpret their TRIPS’ obligations and their integration into their domestic IP regime. This is of course true for States that have ratified the Marrakesh Treaty and its mandatory exceptions.

However, the general obligation to use the TRIPS’ flexibilities does not require the ratification of the Marrakesh Treaty. As Chapter 5 argues, a more general argument is built upon the requirement to interpret Articles 7 and 8 of TRIPS by drawing upon the relevant human rights obligations of the State.Footnote ⁶⁶ If one accepts the paradigm of the CRPD, it must flow into the interpretation of the TRIPS. This example illustrates how a policy change in a related field (such as policy on disability) could be integrated into the fabric of international IP law and hence into domestic IP regimes. People contesting this interpretation might also contest either, firstly, the paradigm instantiated by the CRPD or, secondly, the requirement for States to take proactive measures to address access barriers.

Going beyond Visual Disabilities

In brief, the example of the Marrakesh Treaty can be used to illustrate both a change in content (instantiated by the mandatory exceptions) and in the TRIPS’ interpretation process. The existence of the Marrakesh Treaty, its strong link to the CRPD and its paradigm of disability, can be used to enrich the interpretation of the TRIPS’ foundations and the general framing of the TRIPS.

Expanding on this argument, two further main paths appear. Firstly, both the sufficientarian and republican dimensions of the framing go beyond visual impairment as relevant disabilities. Indeed, the CRPD does not only consider visual disabilities. Secondly, the same argument raises questions about access beyond disabilities.Footnote ⁶⁷ This shall allow connection back to considerations about access, as argued based on the right to science framework proposed in Chapter 5.

In general, this type of ‘going beyond Marrakesh’ argument was foreseeable and could arguably explain the initial attempt by opponents to fight back or downsize the Marrakesh Treaty.Footnote ⁶⁸ If the visually impaired could get mandatory exceptions, it would be extremely difficult to resist the extension to further disabilities and to users’ rights.

On the first point (extended definition of disabilities), the focus put on visual impairment in the Marrakesh Treaty could be extended towards further disabilities.Footnote ⁶⁹ The ‘social model’ paradigm of the CRPD includes all types of disabilities and socially constructed barriers. Where a link to the IP regime could be identified (as a relevant structural barrier), there would arguably be a case for the extension of the rationale of the Marrakesh Treaty. As Ncube and co-authors argue, ‘the challenges in relation to other disabilities and other works are the same and therefore the Marrakesh Treaty model ought to be extended, in principle’.Footnote ⁷⁰

The claim is not that the interpretation of the Marrakesh Treaty should include further disabilities. This is made extremely difficult by the definition of the beneficiary persons (Article 3 of Marrakesh Treaty). The objective is rather to address further disabilities through a new initiative. The WIPO Standing Committee on Copyright and Related Rights (SCCR) has been working on this issue.Footnote ⁷¹ The SCCR has the mission to propose an international normative framework on access and disabilities that considers other forms of disabilities not covered by the Marrakesh Treaty.Footnote ⁷² In the meantime, as explained earlier, the extended perspective on disabilities in link with IP could be integrated into the interpretation of the TRIPS’ foundational norms and, in turn, into the interpretation of the TRIPS’ flexibilities.

On the second point (access beyond disabilities), the rationale for a human rights-based access to IP-protected resources could be extended beyond disabilities.Footnote ⁷³ As Wilkinson puts it, the idea here is to give more importance to the third, and usually least well-served stakeholders in copyright law: users.Footnote ⁷⁴

The content and structure of the Marrakesh Treaty offer some interesting insights on how to address this access challenge in a republican and sufficientarian way. Firstly, we have learnt that access barriers should be addressed as socially constructed. Extending beyond the two paradigms identified by Harpur and Suzor, it could be argued that access barriers to educational resources are socially constructed, and that a part of this construction relies upon copyright laws. In turn, this implies a shift in responsibility for States. They cannot claim zero responsibility for the missing access to resources. At least through the design of their copyright laws, they have an impact on who has what kind of access.

This example refers to access to educational resources, but it could of course be about any relevant IP-protected resources. This approach has been the driving force behind the promoters of the Treaty on Access to Knowledge (A2K Treaty).Footnote ⁷⁵ The latest version of the Draft dates back to May 2005.Footnote ⁷⁶ The main objectives of the Treaty are ‘to protect and enhance access to knowledge, and to facilitate the transfer of technology to developing countries’ (Article 1(1) A2K Treaty).

The second element that we have learnt from the Marrakesh Treaty is that a sufficientarian-republican approach could serve as a normative guideline to identifying priority in granting access. Assuming that specific access claims (object- or group-based) need to be considered as a priority, our framing delivers a structured way to deal with the priority-setting task. In brief, the general argument is to connect the priority to the basic capabilities assumed to be required for a decent life. This bears both on the sufficientarian dimension (having enough of the most important capabilities) and the republican dimension (the important capabilities to secure non-domination). As an example, access to educational resources appears to rank very high on this priority list.

As explained earlier, group-based considerations (e.g., visually impaired people) raise an important moral question about the relations between an argument bearing on fate/bad luck or about the social constructions preventing access to a specific group. Furthermore, group-based considerations remain important in evaluating the risks of domination that specific social groups could suffer. The object-based approach focuses on the relevance of the resources at stake for the life of the individual.

Clear group-based and object-based parameters are important for the first step of the three-step test (limited to certain special cases). A clear delimitation more easily fulfils the strict criterion of the ‘special case’. Indeed, in the Marrakesh example, both the group (visually impaired people) and the object (literary and artistic works) have been clearly delimited. As for the definition of the relevance of the object, a sufficientarian-republican approach could be used to define a guideline for the group(s) to be addressed in priority (from the groups which are currently most at risk of suffering domination to the groups themselves able to prevent this type of risk).

This general rationale of access to highly relevant resources for specific groups can be integrated into our human right to science framework. The point is not so much to argue that resources as output of scientific activities should be made available. They should, but the resources which are here considered important are not only the immediate product of scientific activities (e.g., benefits and applications), but rather broader resources relevant for societal and cultural life. These resources are required to enable citizens to actively engage in priority-setting about which groups should have priority access to which resources.

The main point is to work with the conception of active citizenship which underlies the right to science and further rights aimed at full and equal participation in society. The inclusive and participatory framework of internal decision-making prescribed by the right to science cannot be achieved by an educated minority deciding for the silent and uneducated majority. It is hence a duty for States, both with respect to the right to education, but more generally for the right to science, to empower citizens to become active citizens.Footnote ⁷⁷

The Concept of ‘Ceiling’

Firstly, we need to pause to address an important labelling issue.Footnote ⁷⁸ The qualification of the Marrakesh Treaty as a ‘ceilings’ treaty has given rise to some controversies.Footnote ⁷⁹ In general, the qualification of ‘ceiling’ is used in contrast to the qualification of the TRIPS as a ‘floor’, understood as mandatory IP protection obligations that necessitate compliance. In this context, the idea of ‘ceiling’ seems to make clear that the protection of IPRs, mainly the economic and commercial interests of right holders, can be limited by a ceiling. The main objective is to cap the ‘ratchet’ of IPRs.Footnote ⁸⁰

One weakness of the concept of a ‘ceiling’ is conveying the idea that a ceiling norm, such as an exception or a limitation (e.g., patentability), is also a maximal norm. If a norm is a ‘ceiling’, States are not allowed to go beyond it. The exception or limitation at stake is hence reified as a maximal demand. Applied to the Marrakesh Treaty, the mandatory exceptions prescribed would hence also be maximal exceptions. Indeed, a mandatory and maximalist approach is not completely absent of the TRIPS, though it is exceptional. For instance, Article 10(2) of TRIPS – stating that ‘Copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such’ – does prescribe a mandatory provision which, simultaneously, represents a maximum.Footnote ⁸¹

In contrast, the Marrakesh Treaty does not prohibit States from enacting further exceptions or exceptions that go beyond the negotiated level. As for the TRIPS’ qualification as a ‘floor’, the Marrakesh’s exceptions could also be described similarly. States are required to do at least as much as prescribed by the Marrakesh Treaty, but they could do more.Footnote ⁸²

In that sense, Hilty and Moscon draw on the approach of ‘minimum permitted uses’,Footnote ⁸³ which focuses on the uses that must be permitted at a minimum. In a similar way, Grosse Ruse-Khan has defined the main rationale of a mandatory exception as follows: ‘(…) it includes obligations – inside or outside the IP framework – to give effect to interests distinct from those of IP right holders and their exploitation of protected subject matter (such as competitive markets, dissemination of technology, access to information, protection of the environment, public health, cultural self-determination or human rights)’.Footnote ⁸⁴ The Max Planck Institute for Innovation and Competition’s (MPI) initiative on the ‘International Instrument on Permitted Uses in Copyright Law’ provides a consolidated list of permitted uses.Footnote ⁸⁵ The Instrument wants to foster a more balanced approach to copyright law, generates a certain level of international harmonisation, and facilitates cooperation among countries asserting common interests in a strong public domain and regarding users’ rights. Overall, the use of the concept ‘mandatory exception’ hence captures the mandatory dimension of the exception/limitation, but without the maximalist dimension.

This controversy about what concept to use can be looked at from the perspective of Article 1(1) of TRIPS, which specifies that ‘Members shall give effect to the provisions of this Agreement. Members may, but shall not be obliged to, implement in their law more extensive protection than is required by this Agreement, provided that such protection does not contravene the provisions of this Agreement.’ The first part of the sentence is systematically used to justify the ‘floor’/‘minimal standards’ qualification of the TRIPS. However, the last part of the sentence is also crucial: ‘(…) does not contravene the provisions of this Agreement’.Footnote ⁸⁶ Indeed, this potential contravention has often focused on the required guarantee of minimal obligations (‘floor’ of IPRs). However, more extensive protection can also contravene the TRIPS’ provisions, such as Article 7 of TRIPS.Footnote ⁸⁷

In that sense, it is correct to try to specify which extended protection would go too far and would imply contravening TRIPS’ obligations. The trade dimension of the TRIPS’ obligations recalls that too strong IPRs could impede free trade and threaten the societal objectives prescribed by Article 7 of TRIPS.Footnote ⁸⁸ According to Grosse Ruse-Khan, ‘in a “knowledge economy”, maximum standards to IP protection are as relevant as minimum standards’.Footnote ⁸⁹

Mandatory Exceptions as Non-domination Mechanism

Secondly, the template of Marrakesh’s mandatory exceptions should be considered a promising example of an anti-domination mechanism. The main republican argument in favour of mandatory exceptions/limitations is to recognise that they reinforce the position of the weakest parties in the balancing exercise that TRIPS requires. They reinforce their position both procedurally (by providing security and predictability) and substantially (by requiring consideration of their interests).Footnote ⁹⁰

Substantially, mandatory exceptions require that relevant stakeholders be considered, including users and the broader public (as part of the concept of ‘social and economic welfare’ of Article 7 of TRIPS). These stakeholders are exposed to a systematic risk of being dominated by the right holders. The construction of the TRIPS and the current way WTO bodies have interpreted its content were shown to be in favour of the interests of the right holders. Indeed, the construction of the Marrakesh Treaty and the mandatory exceptions it prescribes force the State to consider the interests of further stakeholders.

This reinforcement of the position of the weakest parties in the IP balance is even more important where pressures by the strongest parties could be exercised.Footnote ⁹¹ As a matter of domestic law-making, this is the case where powerful economic actors try to limit access through domestic rules. If a soft law approach to the demands formulated by visually impaired people would have been chosen (non-binding recommendations for States to implement specific rules), there is little doubt that copyright industries would have fought back in domestic legislative bodies.

A similar rationale applies in the trade negotiations between States.Footnote ⁹² If exceptions/limitations are not made mandatory, powerful trade partners could be tempted to pressure their trade partners to refuse access rights to visually impaired people. Mandatory exceptions prescribed by an international agreement work here as protection against arbitrary interferences.

Procedurally, it is also significant with respect to legal security and predictability.Footnote ⁹³ Mandatory exceptions clarify what States must do in a context of persisting uncertainty about what is legally acceptable. In Kur’s telling, such a Treaty has a protective effect: ‘in an environment where the legislative freedom to provide for users’ rights has become precarious, proactive measures are needed to disperse doubts about the admissibility of specific modes of conduct under the international system’.Footnote ⁹⁴ This missing legal security could have a deterrent effect on States willing to make use of existing flexibilities.Footnote ⁹⁵ Overall, the republican objective is to secure weaker States the concrete possibility to use the TRIPS’ flexibilities and to adopt the best domestic IP regime for their own specific needs.

The Threat of TRIPS-Plus Norms

Despite these encouraging examples, TRIPS-plus norms structurally threaten the main function of flexibilities.Footnote ¹²¹ As explained through the proposed framing of the TRIPS, flexibilities are essential because they enable Member States to balance the different societal objectives mentioned by Articles 7 and 8 of TRIPS in considering domestic circumstances and policy objectives.

On the one hand, TRIPS-plus norms limit the capacity to balance the different objectives of IP protection (such as those foreseen by Article 7 of TRIPS). On the other hand, they might limit the competence to act upon the grounds of public policy objectives (such as those foreseen by Article 8 of TRIPS).Footnote ¹²² Overall, by specifying one specific implementation of the TRIPS’ obligations, TRIPS-plus norms curtail the regulatory autonomy of States.Footnote ¹²³

This argument focusing on flexibilities and regulatory autonomy remains agnostic as to whether the ‘more extensive protection’ made possible by Article 1(1) of TRIPS is beneficial in terms of economic and/or societal impact. As discussed, assessing the general impact of IP-protection on the economy and society is the subject of a long-running dispute among economists and political scientists.Footnote ¹²⁴ The structural threat which specific IP norms in FTAs represent for flexibilities is largely independent from this assessment. What is threatened is not a specific situation at time X (measured in terms of economic welfare or innovation capacity), but it is the capacity to exercise regulatory autonomy in rebalancing the societal objectives of IP protection considering domestic policy goals. Negative impact might make this threat more detrimental,Footnote ¹²⁵ while a positive impact does not excuse reducing the flexibilities. As explained in our reflections on self-determination, the latter is problematic because it might represent a form of institutional paternalism according to which (weaker) States must accept stronger IP-protection because it improves their economy. The positive impact would justify forcing them to accept stronger IP-protection, even against their will. This is problematic for a republican approach centred on the capacity to prevent domination.

This curtailment is made even more problematic in situations in which FTAs prescribe review mechanisms made to ensure compliance.Footnote ¹²⁶ The United States works with a certification process that aims at controlling that the relevant changes in the partner State’s domestic legislation have been carried out in conformity with the negotiated TRIPS-plus norms.Footnote ¹²⁷ This is a further layer in the pressure exercised on the regulatory autonomy of States. The content of the FTA is further negotiated through the domestic implementation process and specified in light of the interests of the stronger trade partner.

This general line of argumentation can be exemplified by focusing on specific TRIPS-plus norms.Footnote ¹²⁸ In its 2016 Report, the UN High-Level Panel on Access to Medicines summarises several examples of problematic FTA provisions in a table.Footnote ¹²⁹ The table distinguishes eight sorts of problematic provisions and provides examples for each of them. An adapted excerpt of this table is reproduced here:

For the time being, I interpret these TRIPS-plus norms as a prima facie threat to the flexibilities entailed by the TRIPS. Taking the example of the protection of data, the TRIPS prescribes a general rule in Article 39(3) of TRIPS constructed around the protection against unfair commercial use. In many FTAs, the flexibility to implement a regime of data protection that fits national objectives disappears.Footnote ¹³³ Data exclusivity provisions are standard elements of FTAs negotiated by the United States, the EU, or EFTA.Footnote ¹³⁴

Taking further the example of ‘patent linkage’, a TRIPS-plus provision might limit the ability of the State to balance the objectives foreseen by Article 7 of TRIPS. It clearly limits the potential to balance innovation requirements, access to medicine, and the protection of IPRs by extending the patent owner’s rights to prevent competing products from entering the market. This linkage combines two types of regulation aimed at distinct goals (reward of innovation for patent and drug security/efficiency for regulatory approval).Footnote ¹³⁵ Detailed provisions limit the capacity of the State to identify, adapt, and pursue policy objectives.Footnote ¹³⁶

Significantly, practices by developed States might evolve in time. For instance, for the United States, the FTAs mentioned in the table entailed provisions on limitations for compulsory licensing. This is a core flexibility of the TRIPS, guaranteeing the ability of States to identify and pursue their own policy objectives. In contrast, multilateral arrangements negotiated recently, such as the USMCA with Canada and Mexico (2020), refer to the Doha Declaration for public health matters and reaffirm the rights and obligations prescribed by the TRIPS with respect to use without authorisation (without specifying further limitations).Footnote ¹³⁷

A Republican Qualification

According to the republican approach, specific TRIPS-plus norms are instances of domination in two senses,Footnote ¹³⁸ the first relating to the negotiation process and the capacity of powerful States to impose a specific result. The second sense is about the content of these negotiated norms, namely the curtailment of TRIPS’ flexibilities through detailed TRIPS-plus norms.

The first instance of domination occurs if powerful States interfere with their trade partners by ‘forcing’ them to adopt specific IP-rules through FTAs.Footnote ¹³⁹ This interference is arbitrary in that the interferer does not have to track the relevant interests of those being interfered with. Because of the bilateral nature of their relations and the imbalance of powers, powerful States might exercise strong pressure upon their partners as a way of imposing their interests on the weaker States.

The same kind of domination occurs if States exercise political pressure on trade partners to prevent them from making use of available flexibilities. In that sense, there is no requirement to enforce specific TRIPS-plus provisions for domination to happen. As the 2016 High-Level Panel on Access to Medicines notes: ‘[in] instances where undue political and economic pressure has been used to dissuade governments from using flexibilities, […] such pressure “violates the integrity and legitimacy of the system of legal rights and duties created by TRIPS”’.Footnote ¹⁴⁰

The second instance of domination occurs because of the content of the negotiated norms. In the case of the TRIPS-plus norms, this content curtails TRIPS’ flexibilities, thereby representing a further, long-lasting form of domination. This form of domination is rendered more problematic in the case of the certification process used to monitor and control the follow-up implementation of specific international obligation. An important feature of this constellation between a strong trade partner and a weak ‘norm-taker’ is the relative weakness of domestic checks and balances.Footnote ¹⁴¹ Powerful trade partners integrate the results of a bilateral negotiation into a domestic legal regime characterised by strong checks and balances (e.g., a strong fundamental rights regime, an efficient judicial system, and critical civil society actors). This is not the case for weaker trade partners, and this is especially relevant for norms that tend to restrict the capacity to maintain the protection of public interests (e.g., access to health).

The two forms of domination are often linked: one trading partner imposes its will upon the other, pushing its own IP-related interests, which prove detrimental to the capacity of the partner to ensure adequacy between its policy objectives and its domestic IP laws. However, one instance of domination bears upon the negotiation process, while the other bears upon the content of the negotiated text.

The second instance of domination (content) adds a circumstance of aggravation. The powerful trading partner not only dominates its partner but also acts inconsistently with respect to its own commitments and obligations as part of the TRIPS. The flexibilities that the partner State enjoys by virtue of the TRIPS are curtailed by the negotiated norms. This inconsistency represents one of the important elements of the argument that will follow.

As explained through this work, private companies also bear responsibility when it comes to exercising domination. Two constellations are relevant here, the first regarding the domestic influence of powerful companies and economic sectors depending on strong IP protection on the trade policy of their home-based State. This is a specification of the first instance of domination described earlier (process). A State negotiates curtailment of the TRIPS’ flexibilities not for its own general domestic interests, but also for its domestically based companies’ interests. Assuming we could empirically distinguish between these two types of interests, we could distinguish between different responsibilities in bringing about negotiation pressure and the problematic outcome (curtailment of flexibilities). As we will address later, one way to tackle this challenge is to promote republican conditions of negotiations (including transparency and accountability).

The second relevant constellation is the use of investment arbitration venues. The opportunity given to companies to directly challenge State’s decisions impacting their investments raises further problems for the TRIPS’ flexibilities. As made clear by the high-visibility cases led by Philip Morris (on plain packaging issuesFootnote ¹⁴²) and Eli Lilly (in a context of the modification of Canadian patent doctrineFootnote ¹⁴³), private companies have the institutional venue and the financial power to challenge States’ decisions. We will consider these cases later, but it is important to already locate these venues and proceedings as instances of domination.Footnote ¹⁴⁴

For the State negotiating a BIT which includes norms that could be used to exercise pressure on TRIPS’ flexibilities, there is a transfer of responsibility towards private companies. The State bears responsibility for opening an institutional venue that could be used to, or result in, exercising pressure on the partner State to reduce its regulatory autonomy. Once this venue is opened, the responsibility of private companies to pressure the partner State is indeed relevant.

The Limits of Consent

Before further proceeding, it is important to critically address a counterargument based on a putative consent. Negotiations’ results are not ‘imposed’ on the trade partner; the party accepts them. This point should be critically addressed as an important philosophical-legal issue for republicanism.

To obtain consent, at least conceptually, negotiation partners must consider each other’s interests. However, it is disputed that consent is a necessary and sufficient condition to secure the absence of domination. For Pettit, consent does not prevent domination from occurring. As he writes when criticising the ‘free contract doctrine’, ‘the development of the doctrine saw freedom of contract invoked in defence of some fairly appalling contractual arrangements, as people ignored the consequences for domination – as they ignored the asymmetries of power established under the contract – and argued that a contract that was not actively coerced was free’.Footnote ¹⁴⁵ However, for other republican authors consent still fulfils an important function. It gives the actor whose consent is required a means of obtaining a certain level of control over the operations being carried out (as in the case of a doctor having to obtain the consent of the patient).Footnote ¹⁴⁶

The republican position on consent should be looked at as a part of the critical literature on the role of consent in international law.Footnote ¹⁴⁷ It echoes normative and descriptive criticisms of consent.Footnote ¹⁴⁸ Following Pauwelyn and co-authors, a certain conception of ‘thin state consent’ continues to be seen as necessary and sufficient grounds for justifying international legal obligations. For the defenders of this thin state consent, international law remains agnostic on ‘how an agreement was reached (process), who participated in its establishment (actors), what form it takes (instrument), and what is actually agreed on (substance)’.Footnote ¹⁴⁹ The objective here is not to address this fundamental issue at length, but rather to raise a presumption against an extreme version of the idea that consent alone can justify any content, such as TRIPS-plus provisions listed earlier. In other words, the main point here is to refute the line of argumentation that would state that there is no problem at all because the trade partners consented to the FTA or the BIT.

From a republican point of view, it is important to conceive of risks of domination broadly. A situation of domination might occur even in cases in which formal consent is given. Three elements are important for the argument to come.

Firstly, consent should be integrated into a set of strong mechanisms forcing the powerful partner State to track the interests of its partner.Footnote ¹⁵⁰ The argument is not about considering consent normatively irrelevant in international law, but about asking how to embed consent into a set of non-domination mechanisms. Through this work, the TRIPS, as a multilateral agreement entailing important provisions such as its Articles 7 and 8, has been conceptualised as incorporating several anti-domination mechanisms.

Secondly, republicanism is particularly well-suited to highlighting a potentially problematic context in which consent might be obtained. In that sense, it might be connected to some provisions of the VCLT focusing on the quality of a State’s consent (Articles 46–52 of VCLT; constitutional concerns, error, fraud, corruption, and coercion).Footnote ¹⁵¹

Thirdly, the aim to improve consistency in international IP law should leave room for consent to remain a central element for international law-making. A specific challenge is to make sense of two distinct acts of consent given by the same State: one to TRIPS as a multilateral treaty, and one to an agreement entailing TRIPS-plus norms as part of trade policy. The challenge is to make consistency between these two consents possible.

As Besson notes, this discussion on the relevance of consent brings us back to the attempt to explain the bindingness of international rules qua law through a common rule, namely pacta sunt servanda (Article 26 of VCLT).Footnote ¹⁵² This rule explains the requirement to ensure consistency between two types of consent: a single State should not consent to incompatible commitments, because it introduces a situation of incapacity to respect the pacta sunt servanda rule. As will be argued, this requirement of consistency is an important anti-domination measure: consent given to the multilateral treaty (especially by powerful States) protects weaker States in the bilateral context.

Combined Effects of MFN and NT

The objective of this subsection is to descriptively apprehend the combined dynamics of MFN (Article 4 of TRIPS) and NT (Article 3 of TRIPS). The general impact of the MFN principle in the context of a growing number of FTAs can be exemplified with the following illustration: State A concludes an FTA with TRIPS-plus norms with State B. Any ‘advantage, favour, privilege or immunity’ found in this FTA shall be immediately and unconditionally accorded to all other TRIPS’ Member States. The change in the domestic law of State A required by the FTA (if any change is required) must also be applied domestically without discrimination between nationals of State A and others, in line with the NT principle. As Hilty and Jaeger put it, ‘the MFN clause and NT principle laid down in TRIPS yield leveraging effects in terms of transposing high IP protection standards either (1) from the domestic to the international level (NT principle); and/or (2) from a bi- or multilateral FTA setting to a universalist setting (MFN clause)’.Footnote ¹⁵³

The ‘ratchet-up’ implications of MFN and NT are unbounded.Footnote ¹⁵⁴ Firstly, this combination increases the level of harmonisation of IP rules. FTA-negotiation templates by strong trade partners, such as the United States or the EU, include norms that are applicable to an increasing number of States because of the MFN-filter. As Frankel illustrates, these higher standards ‘travel beyond the parties to the immediate agreement and into the sea of international intellectual property norms’.Footnote ¹⁵⁵

Secondly, this harmonisation is systematically based on the highest standard of IP protection, meaning a reinforcement of the IPR owners’ interests.Footnote ¹⁵⁶ As Roffe notes, ‘this takes place in FTAs in two identifiable forms that produce similar effects: first, by delineating the referred ambiguities of TRIPS and second, by, intentionally or not, aligning countries to the regulatory regimes of the more advanced partner’.Footnote ¹⁵⁷

Thirdly, as Hilty and Jaeger hold, these principles function as conflict-prevention mechanisms. Using the image of the ‘spaghetti bowl’ to illustrate the web of FTAs, they argue that the MFN principle implies that less favourable IP protection is overruled and becomes obsolete when facing higher standards of protection.Footnote ¹⁵⁸

Additional Risks of Domination

Considering this systemic ‘ratchet-up’ effect of MFN and NT, the risks of domination appear multiplied. Firstly, the risks are multiplied by the increasing level of protection resulting from the web of mutually reinforcing TRIPS-plus norms. The flexibilities prescribed by the TRIPS are put under a stronger pressure.

Secondly, the modality of this increasing protection of IPRs appears highly problematic. A State can consent to an FTA in a bilateral context. Again, the notion of consent needs to be a rich one, and not purely formal. Even if we put this difficulty aside, the MFN effect appears problematic because a State that does not consent to a specific outcome has no choice but to ‘accept’ it through the MFN-filter. Once the upward spiral is launched, lower or more balanced FTA norms cannot be brought back.Footnote ¹⁵⁹ As Frankel explains, ‘the combination of the coercive effect and the flow of norms from other members’ TRIPS-plus FTAs results in some members having lost the benefit of not being obliged to have increased standards’.Footnote ¹⁶⁰

This point is not so problematic for other WTO regimes (such as trade in goods) because the MFN principle ensures an opportunity to take advantage of a preferential setting. However, in the context of the TRIPS, this preferential setting takes the form of an increased protection given to IPR owners’ interests and/or a curtailment of the TRIPS’ flexibilities.

The more general question here is the exact qualification of a norm as ‘increasing’ protection of IP.Footnote ¹⁶¹ Though some cases are clear-cut (e.g., extension of the duration of a patent), other cases are less so. For instance, interpretations of Article 10 of TRIPS (computer programs and compilations of data) might differ in the protection required for the intellectual creation aspects of databases.Footnote ¹⁶² The qualification of such a protection norm depends on the perspective taken to evaluate it, also, for instance, from the perspective of the protection of a strong public domain.

In a similar way, the ‘MFNisation’ of exceptions explicitly stated as part of an FTA also represents an unclear case. For instance, in the area of fair use in copyright, could other WTO Members claim to benefit from an extensive exception granted as part of an FTA between two Member States?Footnote ¹⁶³ As I argue later, the TRIPS is a multilateral agreement on IP which entails the protection of IPR, but also the safeguard of the inherent balance of IP protection (including a strong public domain and further interests).

Thirdly, this type of systemic implication is especially problematic because of the missing mechanisms to prevent detrimental effects. According to Frankel, there are no ‘real opportunities either for international legal challenge or for flexibilities and exceptions to act as an effective counterbalance’.Footnote ¹⁶⁴ This diagnosis might be too pessimistic. There is room to use the TRIPS as a multilateral agreement to put external constraints on the upward spiral and to recall the responsibility of States to protect the TRIPS’ flexibilities.

In addition, or complementary to using the TRIPS as a general multilateral agreement specifying limits to IP protection, several remedies have been addressed in the literature. For instance, Hilty and Jaeger have addressed three types of remedies.Footnote ¹⁶⁵ Firstly, thanks to a GATT-type enabling clause, specific agreements to the benefits of LDCs could be exempted from the MFN and NT effects. This exemption would allow differential and more favourable treatment. Secondly, Hilty and Jaeger mention the introduction of a horizontal clause in the TRIPS that would allow for opt-outs from FTAs. These opt-outs could take different forms (e.g., temporary exceptions in relation to TRIPS-plus protection, prolonged transition periods, and modifications regarding TRIPS-plus enforcement norms). As the authors explain, ‘such opt-outs would extend to an introduction of predictable and comparable ceilings for IP protection at the global level’.Footnote ¹⁶⁶ Thirdly, Hilty and Jaeger approach the issue from a different perspective by mentioning the opportunity to conclude a global agreement on the prevention of misuse of rights. This agreement would go beyond the focus of antitrust law (as already present in the TRIPS) and would focus instead on certain types of abuses linked to IP enforcement.

Definitions

Drawing upon Helfer’s seminal work, regime shifting is defined as ‘an attempt to alter the status quo ante by moving treaty negotiations, lawmaking initiatives, or standard setting activities from one international venue to another’.Footnote ¹⁶⁸ Regime shifting is hence about altering power relations, providing counter-norms, and establishing new framings.

Defined in this way, regime shifting should be distinguished from forum shopping. Sell distinguishes between ‘horizontal’ forum shopping (interplays among various organisations in charge of IP issues, from highly specialised agencies to human rights forums) and ‘vertical’ forum shopping (from the WTO-forum to multi- and bilateral agreements).Footnote ¹⁶⁹ According to Gathii and Ho, the distinction touches upon the objective of forum shopping as a one-time shift to a new forum for a specific dispute.Footnote ¹⁷⁰ It is a strategic move to gain better chances for this dispute. On the contrary, regime shifting has a long-term goal that seeks to change power dynamics with a view towards creating alternative laws or practices that conflict with those in another regime.Footnote ¹⁷¹

Considering these definitions, it appears possible to have both forum shopping (focused on a single dispute) and regime shifting (a long-term strategy to create countervailing norms, practices, and framings). Even more generally, these two strategies can be considered part of a set of strategies that States could draw upon in pursuing their interests. Following the classical piece by Benvenisti and Downs, States can deliberately push the fragmentation of legal regimes as a means of being unrestrained in the pursuit of their interests.Footnote ¹⁷² The two authors have identified four strategies: avoiding broad regulatory regimes, favouring one-time negotiations, avoiding the creation of authoritative institutions (courts, administrations, etc.), and regime shifting. The last strategy is particularly relevant because it exemplifies the attempt by powerful States to create alternative venues to promote their trade interests.

Republican Perspective on Regime Shifting

Regime shifting can be analysed from the perspective of the goal to maintain one’s capacity to exercise domination on weak trade partners, both for States and private companies.

Firstly, regime shifting can be explained by underlining the attempt by States and private companies to reinforce – or at least maintain – their capacity to promote their interests without having to consider the interests of other stakeholders. In other words, they bring the discussion where their capacity to exercise domination is the least constrained. To do so, they might evaluate the chances for a better outcome of a limited set of disputes (bringing regime shifting close to forum shopping), but they could also work towards advocating for specific interpretations of existing norms (such as the TRIPS’ flexibilities) or introducing new norms.

This is not to say that they will exercise domination by, for instance, privileging at all costs their interests. It is about having the capacity to dominate if needed. As Brandi argues, powerful States have a structural interest in keeping the international IP regime, and more generally trade rules, fragmented across different regimes. As she writes, ‘the availability of cross-institutional strategies in an institutionally fragmented global order thus enables domination by powerful actors. Regime complexes contribute to structurally undermining the freedom of States in problematic ways and contribute to injustice by increasing the potential for, or the existence of, domination.’Footnote ¹⁷³ Weaker States do not have the capacity to engage in these strategies.Footnote ¹⁷⁴ They need the multilateral setting that allows them to build coalitions to preserve common interests.Footnote ¹⁷⁵

It is fair to say that civil society organisations have also tried to use regime shifting for the sake of protecting the interests of the broader public. The attempt to promote a conflictual view between human rights and IP protection is a good example of an attempt to bring the IP debates into the human rights forum, both substantively (arguing for the priority of human rights over IP) and procedurally (bringing IP disputes into the realm of human rights bodies).

Secondly, beyond a reflection on its outcome, regime shifting has a specific procedural dimension. Though a specific outcome might not immediately be achieved, regime shifting towards bilateral agreements is an option to favour specific voices in the process of law-making and legal interpretation.

The bilateral setting makes the setting of the negotiation less complex in terms of the number of stakeholders involved and their capacity to build coalitions to promote their interests.Footnote ¹⁷⁶ Imagine the setting for a negotiation of an FTA between the United States and a developing economy. It appears clear that the IP industries of the United States will be able to exercise more pressure on the negotiations, either directly (on their own, both in the United States and in the trade partner) or indirectly (through lobbying on the negotiating governments).Footnote ¹⁷⁷ Their capacity to impact the negotiation is constrained only by the presence of national NGOs (in the United States and in the trade partner) and by general constitutional competence-giving norms (e.g., private companies are not in charge of the negotiations).

This situation contrasts with the multilateral setting in which NGOs, but also a variety of States, can build coalitions to resist stronger IP protection. It is of course not said that they will be successful, but they might at least try to take advantage of the fact that, by definition, the multilateral setting brings a wider set of interests and positions to the negotiating table.Footnote ¹⁷⁸ The bilateral setting has fewer mechanisms of checks and balances, both quantitatively and qualitatively.

But in addition to this changing dynamic of who is sitting at the negotiation table, the way the negotiation is carried out deeply changes. Bilateral negotiations are criticised because of their lack of transparency in terms of information to civil society and the public and, as a corollary, for the lack of opportunity to take part in and impact these negotiations.Footnote ¹⁷⁹ Indeed, this type of criticism is about law-making (e.g., the drafting and negotiations of an FTA), but it might be extended to legal interpretation in case of dispute. As discussed earlier, the jurisdictional setting chosen as part of an FTA (either the DSU or ad hoc dispute settlement bodies) or the arbitration setting (as part of the ISDS for instance) can be very different in terms of checks and balances mechanisms applicable to how specific norms are interpreted.Footnote ¹⁸⁰

Overall, taken together, these two features of regime shifting (outcome and procedure) describe how powerful actors strive to maintain their capacity to exercise arbitrary interferences on other stakeholders. The goal of regime shifting is not about winning a limited number of disputes (bringing it too close to forum shopping) but instead about controlling the processes of law-making and legal interpretation. It would indeed be false to consider the TRIPS and the multilateral IP regime as unaffected by these regime shifting strategies. New interpretative patterns, new arguments, or indeed new framings can travel ‘up’ from the bi- or plurilateral setting to the WTO, but also from an investor-State to a State-State dispute.

The Example of Arbitration Cases

The republican qualification proposed here can be exemplified by the most visible arbitration cases dealing with IP protection. The cases involving the companies Philip Morris (in a plain packaging situation) and Eli Lilly (in a context of the modification of Canadian patent doctrine) exemplify the republican approach outlined earlier.Footnote ¹⁸¹

Firstly, Philip Morris v. Uruguay could be interpreted as an example of forum shopping. The company has launched, either on its own or with the support of WTO States, distinct procedures in distinct fora. However, the overall strategy is not only about a single dispute and how best to strategically proceed to win it but is much more a general strategy of destabilisation of plain packaging regulations as an acceptable practice chosen by States based on their public health commitments. Therefore, the strategy of creating counter-norms to offer a general challenge against plain packaging regulations arguably constitutes a strategy of regime shifting.

In this respect, secondly, the different Philip Morris cases – including the DSU proceeding led against Australia – perfectly match the general ambition described earlier. The goal is to challenge norms that represent a tighter control on the margin of action of the company. To protect this margin, there are several options which all combine distinct framings (about the role of IP in general, its interplay with public health, the responsibility of States, the protection of freedom to do business, and the importance of private company’s investments) and interpretative patterns of the legal norms at stake. Regime shifting is about searching for the best strategy to keep procedural mechanisms defending other stakeholders’ interests (such as public health interests, consumers’ representatives, and others) at the lowest possible level. The ambition to win a specific case is arguably less important than the ambition to impact future developments (norms’ interpretation, norms’ drafting, and general framings) by exercising pressure on national policymakers.

On this point, the Eli Lilly v. Canada case is also a paradigmatic example. By contesting Canada’s change in its patent’s doctrine, the company basically claims that its expectation in terms of investment has not been respected. As a reaction, it hence formulates and defends a different understanding of the conditions of patentability. The TRIPS does not define in a detailed way which intellectual creations should be patentable and which should not and how the patentability criteria must be interpreted. By challenging a State’s decision to adopt a restrictive reading of this patentability, Eli Lilly sends a clear message to Canada, but also to virtually all States in the world, especially the weaker ones: if you revise your domestic legislation in a way that might impede on IP-protected items, or do so in the future, you should be ready to face legal challenges.Footnote ¹⁸² This chilling effect has been an important point in the literature on the impact of investment tribunals on the TRIPS’ flexibilities.Footnote ¹⁸³

Thirdly, beyond this message sent urbi et orbi, the substantial challenges raised and the arguments proposed (the content of the alternative interpretation proposed) are not forgotten. They might be used as inspiration or drawn upon – even without giving credit in any official manner – to interpret further norms, either domestic norms in different countries or international legal norms (such as the TRIPS). As Gathii and Ho argue, companies seek ‘to create conflicting interpretations of these laws and regulations in investor-State arbitration and (…) by seeking to rewrite these laws and regulations altogether’.Footnote ¹⁸⁴

Fourthly, these features of regime shifting should be considered in the specific context of an investor-State arbitration.Footnote ¹⁸⁵ As the specialised literature discusses, the procedural features of an arbitration and the profiles of the adjudicators might be considered detrimental to an open and inclusive proceeding.Footnote ¹⁸⁶ Indeed, the DSU could also be criticised here, but the main point is rather that the DSU allows for more consideration of external voices in a strongly institutionalised procedure.Footnote ¹⁸⁷

But beyond these procedural differences, the main problem lies in the distinct incentives in a State-State proceeding (like in the WTO) and an investor-State proceeding (like in these two mentioned cases). State-State settings exercise a political and diplomatic pressure on the different stakeholders. States are cautious in raising their challenges because they know that the flexibilities they contest for their trade partners are also their flexibilities. In contrast, private companies do not have any strong tempering mechanisms. They cannot be challenged back by the State, they do not fear retaliations and, for the big companies, they have financially a lot to win (potential damages claim) and relatively little to lose.Footnote ¹⁸⁸ Combined with the symbolic message sent by a regime shifting strategy, the cost of a proceeding could cynically be considered a kind of investment in securing well-intended regulations in the future. As Dreyfuss argues, ‘by empowering investors, ISDS thus creates not only more opportunities to challenge state action, it also makes it more likely that state action will be challenged’.Footnote ¹⁸⁹

Overall, powerful private companies arguably occupy a good position to exercise domination: absence of checks and balances on the side of the States involved in the BIT/FTA and absence of risks when engaging in a form of domination. Moreover, bilateral investor-State challenges might incidentally favour a change of interpretation in the multilateral regime (such as the TRIPS). Even short of a new interpretative pattern, weaker States might proactively abandon some of their legislative initiatives to avoid costly legal challenges raised by investors, though they know they could win a legal challenge.Footnote ¹⁹⁰ This is a well-known effect of relations of domination: the dominated entity acts in a way that pleases the dominating entity to avoid the costs of facing arbitrary interferences.

Plurality of Readings

The object and purpose of the TRIPS can be interpreted differently without rejecting the structure of the argument. Put formally, content X is taken as the object and purpose of the TRIPS and, as such, is used as a benchmark to justify limits. For instance, Frankel and Dreyfuss have re-conceptualised the foundations of the TRIPS (or the international IP regime in general) in terms of incentives provided by legal rules.Footnote ¹⁹⁹ The international IP regime should not be a regime of rent-seeking norms for IP owners, but rather an incentive-based regime that fosters innovation and creativity.Footnote ²⁰⁰ This reading is fully compatible with the framing defended in this work and would justify comparable limits put upon bi- or plurilateral trade policies.

Substantially, as argued before, a republican approach underlines the relevance of the self-determination of States. We need a procedure that is built upon this equal claim to self-determination, and that allows each State to defend its interests in the interpretation of what the TRIPS should be about. As in the case of the Doha Declaration, or the discussion on how to adapt the IP regime to face future pandemics (e.g., the 2022 waiver), the TRIPS’ council could be the institutional forum to carry out discussion on the object and purpose of the TRIPS. Of course, the Doha Declaration is not the only example of how to do it but constitutes a substantial piece of any reading of the object and purpose of the TRIPS.

Consistency as Formal Feature

The second criticism rightly points out the structural bias of the approach proposed here in how it gives central importance to legal norms that exist, and that are interpreted in a specific way by the relevant bodies. Overall, the search for more consistency between the TRIPS (as a multilateral agreement) and trade practices by States does not imply a deep modification of the TRIPS’ text itself. The argument takes the TRIPS as it is and as it should be interpreted (according to the framing defended here) and applies this as a benchmark to identify limits to bilateral and plurilateral States’ trade relations.

In that context, the fact that WTO Panels and AB have been very reluctant to take a more principled stance about the content of Articles 7 and 8 of TRIPS is ambiguous.Footnote ²⁰¹ On the one hand, the normative concretisation of Articles 7 and 8 of TRIPS remains largely open, and Member States have tried to propose their own interpretation of these articles.Footnote ²⁰² On the other hand, the non-use of Articles 7 and 8 of TRIPS leaves undetermined and undefined what will be a crucial benchmark for the whole international IP regime.

What is clear is that the missing clarification of what the TRIPS’ foundations mean for the TRIPS itself is not just a neutral fact. Legal uncertainty deploys distinct effects according to one’s relative power position. Expressed in a republican way, as long as DSU bodies or Member States do not clearly take a position on the meaning and structural importance of Articles 7 and 8 of TRIPS, the uncertainty maintains a certain unlevelled playing field.

Grosse Ruse-Khan argues that a similar issue can be located at the level of a regime.Footnote ²⁰³ Not taking a position, such as the relative silence of DSU bodies on Articles 7 and 8 of TRIPS, is also a position that opens further venues or gives specific actors a wider margin of action. For instance, investment tribunals might occupy the normative space left by the position/silence taken by a DSU body. This structural regime-based view shines a different light on the importance of DSU bodies taking a strong position on the TRIPS’ foundations. As Grosse Ruse-Khan summarises, ‘all this diminishes the role and importance of rights and interests not reflected in the more powerful regimes in international economic law’.Footnote ²⁰⁴ In contrast, if the TRIPS’ foundations would be reflected in this more powerful regime (such as the TRIPS as part of the WTO), they could deploy the consistency-guaranteeing effect described here.

Added Value of Consistency

The relevance of consistency might be questioned from the perspective of its added value for international law. This question might be addressed from the point of view of international law theory. As Peters notes, consistency might be particularly important for international law as its normative power is more precarious than that of domestic law.Footnote ²⁰⁵

In replying to this third criticism, the republican approach can explain why this content-independent consistency has an important value. To understand this point, we need to recall that securing non-domination is about putting strong procedural mechanisms into place. As mentioned in the analysis of the TRIPS as an integral Agreement, this consistency-guaranteeing function makes apparent that the international IP regime is organised around specific normative objectives. This point can be made with an analogy to the consistency of international law in general. As proposed by Peters in interpreting the report submitted by the International Law Commission on the fragmentation of international law, the principle of systemic integration should be understood as presupposing and implying some sense of a global common good which should be pursued as a matter of interpreting international law.Footnote ²⁰⁶ Similarly, forcing powerful States to consider the interests of others by requiring them to respect Articles 7 and 8 of TRIPS presupposes and implies a common good at the core of the international IP regime. Structurally, this common good is the content of Articles 7 and 8 and it represents the normative core of the international IP regime.

This anti-domination mechanism is particularly interesting because it is deeply dynamic. According to the interpretation given by States of Articles 7 and 8 of TRIPS, the mechanism could become very powerful in requiring States to consider the interests of other States. As the Doha Declaration has shown, a specific interpretation of Articles 7 and 8 of TRIPS might be accepted and promoted by WTO Member States. The content of these two articles might evolve and transform the protection given to all Member States.

Applicability and Conditions of Article 41 of VCLT

This first question concerns the applicability of Article 41 of VCLT to the WTO. In principle, because of the customary international law status which the VCLT has, Article 41 should be applicable in the WTO-relevant bilateral trade agreements between WTO members. This is the case as long as no specific rule within WTO law excludes the application of Article 41 of VCLT. In this context, the findings of the AB in Peru – Agricultural Products are relevant.Footnote ²⁰⁸ In this case, the AB had to determine whether Article 41 of VCLT was applicable in a conflict between an FTA and the Agreement on Agriculture, or whether a more specific WTO-rule was applicable. Its findings clearly reaffirm the importance of the lex specialis principle within WTO law.Footnote ²⁰⁹ If there is no specific rule, general international law shall apply.

In the case of the TRIPS, there is no specific rule addressing potential conflicts with FTAs. We might therefore conclude that Article 41 of VCLT is applicable.Footnote ²¹⁰ It is important to note that this intermediate conclusion does not aim at making a stronger case for or against the isolation of WTO law from international law. It only makes the case for the applicability of the VCLT, especially its Article 41, to the specific constellation of TRIPS-plus norms in FTAs and similar agreements.

Article 41 of VCLT allows an inter se modification to the extent that it:

1. (1) does not affect the enjoyment by the other parties of their rights under the treaty or the performance of their obligations;

2. (2) does not relate to a provision, derogation from which is incompatible with the effective execution of the object and purpose of the treaty as a whole.

These two conditions apply cumulatively.

As to (1), investigation is necessary as to whether a TRIPS-plus provision affects the rights or obligations that third-party WTO members have by virtue of the TRIPS. At first glance, this case seems difficult to make. The fact that two WTO members decide to extend the minimal standards foreseen by the TRIPS does not a priori affect the rights and obligations of third-party WTO members, at least as long as their own nationals remain unaffected. The principle of NT remains relevant in any case.

However, it is sufficient to imagine concrete cases in which a third country is somehow dependent upon decisions or actions taken by others. For instance, border enforcement measures, such as an obligation to seize generic drugs in transit, might affect the right of a third country to take advantage of the flexibilities that TRIPS guarantees. Grosse Ruse-Khan gives the example of generic drugs from India seized in transit in the EU on their way to Brazil.Footnote ²¹¹ This obligation to seize goes beyond TRIPS’ requirements and impacts the right of Brazil to take advantage of the flexibilities entailed by the TRIPS (relying on international exhaustion or a compulsory licence to import these drugs). In that case, the TRIPS-plus provision requiring the EU to seize drugs in transit affects the right enjoyed by Brazil.

Generally, we might extend this example to any constellation of IP protection and enforcement with extra-territorial effect. The last category in Table 6.2 entails several examples of problematic border enforcement measures. In such cases, the TRIPS-plus provisions bearing upon the partners might prejudice the right to use flexibilities enjoyed by third countries. With respect to (1), we can thus conclude that, where a TRIPS-plus inter se provision inhibits the ability of other WTO Members to exercise their rights under the TRIPS, in effect, to use the TRIPS flexibilities effectively, then such a modification is inconsistent with Article 41(1)(b)(i) of VCLT.Footnote ²¹²

As to (2), it is necessary to assess whether the modification at stake is incompatible with the effective execution of the object and purpose of the treaty as a whole. Assessing whether a specific inter se modification represents a compatibility problem for the object and purpose of the treaty necessitates coming back to the distinction between reciprocal and integral treaties.Footnote ²¹³ As argued earlier, the TRIPS should be conceived of as an integral treaty. Articles 7 and 8 of TRIPS set common and collective objectives for the treaty as a whole. The object and purpose play an essential role in conceptualising the overarching objective to which the treaty’s members commit themselves.Footnote ²¹⁴ Article 41 of VCLT is made to prevent cases in which this objective is threatened by an inter se modification.Footnote ²¹⁵ From this perspective, it appears that Articles 7 and 8 of TRIPS limit the ability of Member States to choose inter se modifications which impact the object and purpose of the treaty. Consequently, Article 41(1)(b)(ii) of VCLT prohibits Member States from having FTA provisions that are incompatible with Articles 7 and 8 of TRIPS.

It is important to briefly address the question of the temporal order of the different operations. The focus of the present consistency-guaranteeing function qua inter se regulation is temporally located when parties negotiate inter se modifications (e.g., negotiations of an FTA).Footnote ²¹⁶ This first focus is to be distinguished from a reflection on a potential conflict between a TRIPS-plus provision and the TRIPS in combination with inter se regulation of the VCLT. Following a general principle of harmonious interpretation, the first reaction is to look for interpretation(s) compatible with the different norms. This interpretation should make the balancing of public interest principles possible by constructing the provisions as opening sufficient policy space. As the Max Planck Principles lay out, ‘when implementing specific provisions serving the interests of right holders, the implementing country maintains the right to draft exceptions and limitations necessary for restoring the balance of Article 7’.Footnote ²¹⁷ If no such interpretation is possible, we need to clarify which norm takes priority (assuming a binary choice between the TRIPS’ foundations and an FTA’s provision). As Mitchell and Voon point out, this type of conflict situation could be addressed by drawing upon rules and principles for norms’ conflict.Footnote ²¹⁸ For instance, they mention the recourse to Article 30(4)(a) of VCLT about the application of successive treaties relating to the same subject matter and argue that the latter treaty could be considered to have priority (as a form of lex posterior).

Expressed positively, this use of Articles 7 and 8 of TRIPS as a basis for justifying compensatory measures (i.e., measures supportive of the achievement of the object and purpose of TRIPSFootnote ²¹⁹) might be considered as an example of a ‘rapprochement technique’ identified by Peters, and defined as a ‘technique that seek[s] to create compatibility, not only in a “negative” sense, but also in a supportive (“positive”) sense for the achievement of the objectives of other treaties’.Footnote ²²⁰

Assessing Specific FTA Provisions

This subsection applies the previous reflections on specific FTA’s provisions that might prove incompatible with Articles 7 and 8 of TRIPS.Footnote ²²¹ The problematic provisions make either balancing what Article 7 of TRIPS formulates as an objective of the treaty or protecting public interests foreseen by Article 8 of TRIPS impossible. On the first element, the Max Planck Principles state that ‘flexibilities crucial for the balance that Article 7 establishes should not be restricted. These are flexibilities that support designing domestic IP systems to be “conducive to social and economic welfare” (Article 7 TRIPS).’Footnote ²²²

Taking the categories mentioned in Table 6.1, we can assess whether the norms in question are problematic.Footnote ²²³ Firstly, the prohibition of pre-grant patent opposition proceedings is problematic, but does not directly put into question the normative framework represented by Articles 7 and 8 of TRIPS. Countries facing this kind of prohibition through a TRIPS-plus provision might adapt their domestic legislation to make sure that the balancing of objectives foreseen by Article 7 of TRIPS is still possible (e.g., simplification of post-grant opposition).

Secondly, the obligation to introduce ‘patent linkage’ for generic drugs could also seriously impact the right of States to take measures for the sake of their public health (Article 8 of TRIPS, interpreted in light of the Doha Declaration). Countries facing such provisions might consequently introduce compensatory measures in their domestic legislation.Footnote ²²⁴

Thirdly, the limitation of the grounds for issuing a compulsory licence (for example to national emergencies or for tackling anti-competitive practices) is the example that clashes most clearly with the object and purpose of the TRIPS.Footnote ²²⁵ Such a TRIPS-plus provision aims at diminishing core flexibilities guaranteed by Article 8 of TRIPS and recalled by the Doha Declaration. In a similar way, Mitchell and Voon consider TRIPS-plus norms that would derogate from the flexibility secured by Article 6 of TRIPS with respect to parallel importing would also fail to be compatible with the object and purpose of the TRIPS.Footnote ²²⁶

In such a case, Articles 7 and 8 of TRIPS provide strong normative resources to justify compensatory measures, public exceptions to the TRIPS-plus provision, or a far-reaching interpretation of the concept of ‘national emergencies’. In the case in which all these measures do not allow a harmonious interpretation, the argument presented here justifies the right of the State to give priority to the multilaterally decided set of objectives underlying TRIPS.

Overall, the argument underlines the right of partner States to rely upon the flexibilities guaranteed by the TRIPS to secure their own legitimate margin of decision.Footnote ²²⁷ It gives them more leverage in a context of bi- or plurilateral negotiations. The same applies to stronger States: the argument challenges their trade policy under the point of view of its consistency. States must investigate whether bilateral trade policy decisions are compatible with multilateral commitments taken in the form of a treaty such as the TRIPS.

Redefining Investment

According to the republican framing, a main issue of investor-State arbitration is the fact that investors are not forced to consider the interests of the States and communities they interact with. If we redefine what constitutes an investment in the context of IP, we might modify the conditions in which investors can challenge a State’s decision. The consistency that needs to be reinforced is between the TRIPS’ foundations as defined in this work and the interpretation of an investment and conditions to qualify as an investor.

The first step of the argument is to connect the definition of an investment as part of a BIT with the object and purpose of the TRIPS. This discussion is part of a rich literature on how to understand investment in the context of IP.Footnote ²³⁰

The point of departure is to highlight the difference between tangible investments done directly in the host State and IPRs interpreted as an investment. The example of mere ownership of IP rights is a relevant illustration.Footnote ²³¹ For many authors, mere ownership does not qualify as a relevant investment.Footnote ²³² As Okediji explains, ‘at a minimum, a determination that an intellectual property rights owner is also an investor cannot plausibly be based solely on acquiring rights, particularly since member States of the WTO have no choice but to accord such rights, and to do so on the terms set by the TRIPS Agreement’.Footnote ²³³

The fact that IPR is sometimes explicitly mentioned as a category of investment in BITs does not fully answer the question. In Correa and Vinuales conceptualisation, the definition of an investment should be addressed as a ‘gate’ which leads to a potential investment claim.Footnote ²³⁴ The gate is composed of the definition of ‘investment’, including the way the BIT refers to specific protected assets (e.g., by reference to domestic laws of the partners) and the way adjudicators settle jurisdictional competence. The first definitional feature is addressed by BITs in trying to specify the conditions for an investment to be recognised as such. For instance, the US 2012 BIT Model prescribes that a protected asset must have ‘the characteristics of an investment, including such characteristics as the commitment of capital or other resources, the expectation of gain or profit, or the assumption of risk’.Footnote ²³⁵ In contrast, the Indian 2015 BIT Model adopts what Correa and Vinuales call an ‘entreprise-based approach’.Footnote ²³⁶ According to Article 1(6) of the Indian BIT, investment implies ‘an Enterprise in the Host State, constituted, organized, and operated in compliance with the Law of the Host State and owned or controlled in good faith by an Investor’.Footnote ²³⁷

The second definitional feature relates to the jurisdictional competence, such as, for instance, in Article 25(1) of ICSID and the interpretation of the concept of ‘investment’ it entails.Footnote ²³⁸ The degree of autonomy in interpretation of such a concept from State-State contract law is key to addressing the ‘gate’ function. Following the Salini decision on jurisdiction, the criteria of jurisdiction usually include: a capital contribution, a certain duration, participation in the risks of the operation, and a contribution to the development of the host State.Footnote ²³⁹ These elements shall be further defined in the context of IP as an investment.Footnote ²⁴⁰

For the present argument, the important point is to acknowledge that these qualifications are normative questions that arbitrators must decide. A BIT is an international Agreement and the qualification of the different criteria is an interpretation issue to which the VCLT rules should be applied. As Frankel holds, to apply VCLT rules (mainly Article 31 of VCLT) implies in turn to look for the object and purpose of the Agreement.Footnote ²⁴¹ In interpreting a BIT, arbitrators should interpret the ordinary meaning of the text in context, meaning considering inter alia the ‘rules of international law applicable between the parties’ (Article 31(3)c of VCLT). Where a BIT’s provision is unclear, the TRIPS’ provisions should be used to specify its meaning, while considering the international IP regime’s consistency.Footnote ²⁴² In brief, the TRIPS shall serve as a relevant interpretative resource in interpreting the IP-related provisions of a BIT.Footnote ²⁴³ The alternatives are an interpretation focused on the exclusive claims by investors (missing to account for the specificity of IP as related to trade/investment) or a non-purpose interpretation (obscuring the normative embedment of a BIT in international law).Footnote ²⁴⁴ Both appear unsatisfactory.

Once this interpretative connection is established, it makes sense to draw upon the TRIPS’ object and purpose to interpret disputed IP-related BIT provisions. Two specific implications must be highlighted.

Firstly, societal interests of the IP justification matrix and the capacity of States to decide how to establish a satisfactory balance as a matter of domestic IP regulations must be protected as a core competence guaranteed by the TRIPS. Interpretation patterns that negate this domestic regulatory competence (as an expression of the combination of IP minimal standards and self-determination) cannot claim to be compatible with the TRIPS. As Dreyfuss and Frankel propose, this framing offers resources to resist the assetisation of IPRs as a matter of an investment treaty.Footnote ²⁴⁵ IPRs cannot be compared to tangible assets because their existence presupposes and relies upon the guarantee of further societal interests.Footnote ²⁴⁶

Secondly, this framing opens the way to establishing a reaffirmed conditionality between the commitments taken by States as TRIPS’ Members and the qualification of the concept of investment in the context of a BIT. Adjudicators interpreting a BIT shall consider the qualification as an investment holistically, in effect as part of what Correa and Vinuales call a ‘wider transaction’ between investors and a host State.Footnote ²⁴⁷ Either in an enterprise-based approach or in a qualified asset-based approach, this wider transaction calls for considering the real presence and contribution of the investment (e.g., location in the form of R&D and/or manufacturing activities in the host State). The objectives of the TRIPS, namely inter alia the transfer and dissemination of technology, are relevant interpretative resources to do so.

As an illustration of this conditionality, Dreyfuss has proposed that the right to challenge a specific State’s decision related to a public policy choice (e.g., health policy) could be made conditional upon sufficient involvement in this specific State.Footnote ²⁴⁸ To qualify as an investor requires concrete actions taken with respect to the promotion of technical innovation and the transfer and dissemination of technology (Article 7 of TRIPS).Footnote ²⁴⁹ In policy terms, the consistency requirement could be integrated into the drafting of BITs as a condition for an investor’s competence to challenge an IP-relevant host State’s decision that the investors concretely contribute to technology transfer in the host State (i.e., fulfils its responsibility).

This type of conditionality would have a double effect directly linked to the TRIPS as general framework. Firstly, the number of potential challengers would be reduced as challengers will only qualify those who are genuine investors as assessed by the TRIPS benchmark. In a republican fashion, the TRIPS functions here as an anti-domination mechanism preventing private companies from being able to challenge virtually any public policy impacting their IPRs in any country of the world.

Secondly, this conditionality also fosters the alignment of the State’s interests and the investors’ interests. If only genuine investors (as defined earlier) can challenge the State’s decisions, the content of these challenges would change. As Dreyfuss puts it, ‘greater engagement would mean that investors have interests in common with the host state’s citizens’.Footnote ²⁵⁰ They will be more cautious in challenging policy choices and practices which they could take advantage of in the future.

Safeguarding Clauses

In addition to the interpretation of the concept of investment, the TRIPS also has an impact on the specific interpretation given to what are called ‘safeguard clauses’, which aim to safeguard accepted limits to IP rights in international treaties against claims of expropriation (safeguard clauses).Footnote ²⁵¹ This subsection highlights the implications of these clauses and discusses potential ways to alleviate related challenges by drawing upon the TRIPS as a general multilateral framework.

Firstly, in brief, ‘safeguard rules’ connect the qualification of the State’s actions (and their impact on the investment) to the question of consistency with the TRIPS and the international IP regime. If national decisions are found to be inconsistent with the TRIPS, there is a strong presumption of incompatibility with the relevant norm of the BIT (often a norm on expropriation). This is the type of safeguard norm that Eli Lilly has tried to use in its case against Canada. In this specific case, the relevant norm was Article 1110(7) of NAFTA which exempts all IP-related measures (including the issuance of compulsory licences, the revocation, limitation, or creation of intellectual property rights) from expropriation claims under the condition that the measures are consistent with NAFTA’s IP provisions (chapter 17). To defend itself, Canada had hence to show that its change in patent practice was compatible with the NAFTA (and, by extension, compatible with the TRIPS). Similarly, the US BIT Model 2012 requires that ‘the revocation, limitation, or creation of intellectual property rights’ does not amount to expropriation, under the condition that it is ‘consistent with the TRIPS Agreement’.Footnote ²⁵²

For the present argument, it is interesting to note that the issue of the TRIPS’ interpretation becomes central.Footnote ²⁵³ If compatibility with the TRIPS is at stake, it is not only a specific TRIPS’ provision that must be considered (such as a patent provision in the Eli Lilly constellation, for instance Article 30 of TRIPS), but the TRIPS in globo as international Agreement. Framed in that way, the patent doctrine change decided by Canada would not only be a patent question, but a question embedded in the TRIPS, including Articles 7 and 8 of TRIPS and the Doha Declaration.

This strategy makes sense in theory. However, the chances are high that an arbitration tribunal will only marginally consider the foundations of the TRIPS itself and instead will focus on the immediately relevant part (e.g., the patent provisions). This difficulty is reinforced by the specific constellation of an investor-State proceeding.Footnote ²⁵⁴

As Grosse Ruse-Khan states, ‘since the core of the problem is created by providing private investors a route to challenge compliance with public international standards of IP protection, the principal solution lies in shutting this avenue down’.Footnote ²⁵⁵ These propositions contemplate carve-out options of IP issues in BITs.Footnote ²⁵⁶ For instance, India’s BIT Model 2015 provides that the treaty does not apply to ‘the revocation, limitation or creation of intellectual property rights, to the extent that such issuance, revocation, limitation or creation is consistent with the Law of the Host State’.Footnote ²⁵⁷ Propositions also consider a softening of the consequences of a potential incompatibility with the TRIPS on the qualification as expropriation. The standard to qualify as expropriation might be raised to encompass only denial of justice, for instance.Footnote ²⁵⁸

Among these possibilities, this argument focuses on a consistency-guaranteeing strategy. As done previously with the interpretation of investment, a similar approach should be adopted here: take advantage of the TRIPS (and other IP agreements which both parties to a BIT have ratified) as a means of harmonious interpretation of the BIT’s norms.

It is firstly relevant when a BIT uses an open and ambiguous standard, for instance, in the context of measures taken by the host State for the enforcement of IP rights. In such a situation, the TRIPS’ relevant provisions (the enforcement provisions of Part III), interpreted as part of the object and purpose of the TRIPS in globo, should be used to interpret standards of protection for investors. If due diligence is expected from the host State in the protection of the investors’ asset, the TRIPS can be drawn upon as a benchmark to define the degree of diligence expected.

It is secondly relevant when it comes to the definition and interpretation of expropriation. Using harmonious interpretation prescribed by the VCLT rules will imply here integrating TRIPS’ flexibilities, exceptions, and limitations (as part of the TRIPS’ framing) into the interpretation of the expropriation’s standard.Footnote ²⁵⁹

This approach fulfils a similar function as the safeguard clauses addressed earlier, but it alleviates their most important side effects, such as the obligation for an arbitration tribunal to assess TRIPS’ compatibility of IP domestic rules. For instance, in the Eli Lilly constellation, such an approach would have on the one hand required arbitrators to interpret what the international IP regime requires/allows (NAFTA in the case, but the TRIPS as a general agreement). This first step must encompass the object and purpose of the TRIPS, including its flexibilities and the protection of the domestic margin of action. On the other hand, in assessing the notion of expropriation, the international law approach would have required arbitrators to consider this margin of action and the legitimate pursuit by States of their policy interests. The legitimacy of these policy interests is not external to the IP regime, but part of it and protected as such by the TRIPS. As Grosse Ruse-Khan argues, one limitation of this approach drawing upon general international law’s principles on interpretation is the legal uncertainty that comes with it.Footnote ²⁶⁰ It is not clear whether and, if yes, which norms would be considered relevant by arbitrators in a specific case.

Limitations

As shown, the interpretation of the TRIPS as a whole should be used as a mechanism to prevent inconsistent interpretations of a BIT’s provisions. As for the inter se regulation, the TRIPS plays the function of a normative framework offering the relevant interpretative resources to ensure a consistent international IP regime. This mechanism is structurally republican in calling States (as drafters of BITsFootnote ²⁶¹), investors (private companies), and arbitrators in arbitration proceedings to pay due consideration to the societal interests inherent in the protection of IPR. Not least, it forces relevant entities to engage with these societal interests and to be cognisant of the other legal regimes at stake (such as the relevant human rights discussed in the previous sectionsFootnote ²⁶²). As Dreyfuss and Frankel hold, ‘to restore a place for balance, international lawmakers and adjudicators must focus on the nature and purpose of that which is being protected. IP lawmakers need to be cognisant of other regimes and public-regarding concerns.’Footnote ²⁶³

Despite its normative validity, this general approach cannot address all the challenges identified. If successfully applied, it might reduce the capacity and the willingness of investors to challenge public policy adopted by States. However, its complexity (and the associated required expertise and resources) can be a weakness. It might be difficult for developing economies to mobilise resources to conduct wide-ranging international law analysis to resist an investor challenge. The chilling effect of investors’ challenges might still represent an important threat. Nevertheless, recall that such a challenge is also an issue of the investor’s responsibility (as private company).Footnote ²⁶⁴ As argued previously, private companies are expected not to take measures that might have a detrimental human rights impact.

Clause Protecting Flexibilities

Provisions in FTAs and in BITs could explicitly mention the importance of the TRIPS and its flexibilities and act as consistency-guaranteeing mechanisms in establishing a direct normative connection between the FTAs and the TRIPS.

Going from stronger to weaker protection of the TRIPS’ flexibilities, the following options can be found in current FTAs. The FTA between the EU and Colombia and Peru exemplifies an explicit norm protecting flexibilities.Footnote ²⁶⁵ Similarly, the FTA between China and Switzerland explicitly states that ‘the Parties recognize the principles established in the Doha Declaration on the TRIPS Agreement and Public Health adopted (…) and confirm that the provisions of this Chapter are without prejudice to this Declaration’.Footnote ²⁶⁶ This type of formulation could be strengthened by underlining the importance of ensuring consistency with the TRIPS and the Doha Declaration. For instance, the Enhanced Partnership and Cooperation Agreement between the EU and Kazakhstan stipulates in its article on ‘Patents and public health’ that ‘the Parties recognize the importance of the Declaration of the Ministerial Conference of the WTO on the TRIPS Agreement and Public Health (…). In interpreting and implementing the rights and obligations under this Chapter, each Party shall ensure consistency with that Declaration.’Footnote ²⁶⁷

From the perspective of protecting weaker trade partners against domination, such strong formulations should be favoured. They clarify that the TRIPS as interpreted in light of the Doha Declaration represents the relevant normative framework and that flexibilities guaranteed by the TRIPS must be respected, despite IP commitments taken as part of an FTA. Drafting IP protection norms in a way that allows flexibility in the implementation is a minimal strategy to ensure consistency with the TRIPS. As proposed in the Max Planck Principles, ‘if parties agree on IP provisions containing stronger protection or enforcement obligations, these provisions should nevertheless be sufficiently flexible to take into account the socio-economic situation and needs of both parties’.Footnote ²⁶⁸

Some FTAs mention structurally under-represented groups of interests,Footnote ²⁶⁹ such as the ‘legitimate interests of users’,Footnote ²⁷⁰ ‘the interests of relevant stakeholders including right holders and users’,Footnote ²⁷¹ and ‘the public interest’ in general.Footnote ²⁷² As already mentioned, the CPTPP acknowledges ‘the importance of a rich and accessible public domain’.Footnote ²⁷³

In this context, the issue of the protection of genetic resources and traditional knowledge emerges as an important point, especially from the perspective of States with important biodiversity.Footnote ²⁷⁴ According to Roffe, the current situation is ambiguous.Footnote ²⁷⁵ On the one hand, genetic resources and traditional knowledge are increasingly an issue in FTAs, especially for the EU and the EFTA.Footnote ²⁷⁶ These issues are recognised as important, not least as a contribution to cultural, economic, and social development. For instance, in the FTA with CARIFORUM States, an article is dedicated to the protection of genetic resources, traditional knowledge, and folklore.Footnote ²⁷⁷

On the other hand, the increased importance given to these questions in FTAs does not mean that multilaterally agreed upon orientations on what States shall or can do have emerged. The modalities of protection, such as prior informed consent, disclosure requirements, or even benefits sharing are largely left to mutually agreed upon terms. However, this type of consent-based approach does not fully answer questions about expertise and power imbalances. This is why demandeur States have kept working in multilateral forum, mainly in the WIPO’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC). In this context, the adoption of the GRATK Treaty in 2024 is a clear success.

MFN for Flexibilities and Commitments

The MFN principle was described earlier as one of the structural reasons for the expansion of IP protection through FTAs. Nevertheless, it might be possible to use this principle for the sake of fostering further interests protected by the TRIPS. This approach draws upon the systemic effect of MFN and uses it to globally extend flexibilities and commitments that are part of FTAs.

The first step of the argument is about the interpretation of Article 4 of TRIPS (the MFN principle), namely, the interpretation of the ‘protection of intellectual property’ and of ‘any advantage, favour, privilege or immunity’. The challenge is to interpret these concepts not only as meaning IPRs or stronger protection of the interests of the right’s holders.Footnote ²⁷⁸ The extension of an exception/limitation (e.g., as part of fair use in the context of copyright or patentability in patents) should also be part of the rationae materiae of Article 4 of TRIPS. To do so, the undetermined concepts of Article 4 of TRIPS shall be interpreted in light of the object and purpose of the TRIPS which, summa summarum, aims at protecting the balance of interests that IP protection requires. The protection of IP entails the protection of the societal interests that are intrinsic parts of the justification matrix of IP. As formulated by the Max Planck Principles, ‘the notion of protection and enforcement of IP should be understood to encompass also exceptions, limitations and other rules that balance the interests of right holders against those of users, competitors and the general public. This wider notion allows for an equally wider understanding of national treatment and most-favoured-nation treatment in international IP law.’Footnote ²⁷⁹

Assuming this first step of the argument, two complementary argumentative tracks appear: the recognition that exceptions/limitations represent a potentially valuable element and the ‘MFNisation’ of commitments taken by States.

The first track is about protecting the legitimate expectations arising from exceptions and limitations implemented by a State. It is a variation of the argument presented earlier in the context of investor–State relations. As specific investors expect a certain level of protection of IPR, other investors might expect exceptions to be upheld.Footnote ²⁸⁰ As Dreyfuss explains, some companies take advantage of a strong public domain (e.g., by using material legally uploaded to the Internet) and are interested in the protection of these freely available resources.Footnote ²⁸¹ The argument recalls that exceptions and limitations are equally important as an inherent part of IP’s justification matrix.

The second track connects with the preceding subsection about FTA’s provisions protecting the TRIPS’ flexibilities and formulating commitments with respect to technology transfer and assistance. These commitments are interpreted as part of the rationae materiae of the MFN principle. The argument can be used during trade negotiations.Footnote ²⁸² As Moerland states, the FTA between the Cariforum Parties and the EC can be taken as an example. In this FTA, parties agreed on demanding provisions on the transfer of technology.Footnote ²⁸³ In subsequent negotiations, trade partners of the EU, such as India or Central American countries, have claimed similar provisions.Footnote ²⁸⁴

The MFN principle is used to justify that any other TRIPS Member should be able to claim the same protection as guaranteed in a specific bilateral setting. Of course, if a specific provision is meant to apply to a specific category of States (such as LDCs), only other LDCs might draw upon this provision. The argument necessitates the same state of development in the FTA used as the source and in the situation at stake.Footnote ²⁸⁵

Increasing Procedural Quality

On a different level, it is possible to work on the procedural quality of the negotiation process in order to increase the chances that FTA and BIT pay attention to TRIPS’ flexibilities. This quality directly refers to the capacity of domestic and international stakeholders to raise their voice in the process of negotiation on IP-relevant issues.Footnote ²⁸⁶ Where stakeholders do not have this capacity, stronger parties are arbitrarily interfering with their interests.Footnote ²⁸⁷

As the Max Planck Principles state, this inclusivity and participation requirement should be guaranteed not only once, but also at different stages of negotiation.Footnote ²⁸⁸ Prior to the mandate and preliminary results of a negotiation, there should also be a meaningful opportunity to co-determine the general trade policy choices defended by the State during the negotiation.Footnote ²⁸⁹ The determination of the trade and IP policy should already be guided by the right to science framework presented earlier.Footnote ²⁹⁰ Here also, specific attention should be given to weaker stakeholders who, because of missing resources or competencies, cannot proactively formulate their interests (e.g., indigenous communities or civil society organisations defending free access to knowledge).

With respect to the negotiation process itself, republican good practices would entail an inclusive process (making sure each stakeholder can make their interests be heard), specific measures to ensure weaker stakeholders have the resources to make their voice heard, impact assessments to force the State to evaluate the foreseeable impact of the proposed trade regulation on the State in general, and in particular on the interests defended by specific stakeholders.Footnote ²⁹¹

Analogous to the distinction between human rights duties and responsibility is the need here to distinguish between the primary responsibility of each trade partner to look for its domestic stakeholders and the secondary responsibility to do something if the trade partner does not fulfil these conditions. In other words, should a republican State (acting along the lines outlined earlier) do something if its trade partner State does not respect any of the procedural requirements identified (e.g., an authoritarian regime)?

As explained earlier with respect to its human rights responsibility, the republican trade partner should look for measures able to fulfil a similar function (preventing domination). It should, for instance, proactively integrate the interests of stakeholders not represented in the process of negotiations because of the other trade partner (e.g., a persecuted indigenous community). It should furthermore consult international civil society actors defending the types of stakeholders at stake (e.g., indigenous communities’ representative at the international level) and provide them with an opportunity to voice their interests in the negotiation process.

In this regard, the international IP-relevant organisations (such as WIPO) could have an important role in levelling the playing field regarding interests of minority stakeholders that are found in a variety of contexts. They should provide good practices (both in procedural and substantive terms) that should be respected by negotiating partners committed to enhancing the consistency of the international IP regime. The underlying idea is the same as above: the foundations of the TRIPS represent the values and commitments accepted by the TRIPS’ members. These normative desiderata should, as such, be defended by the relevant organisations.Footnote ²⁹²