Why are the TRIPS enforcement provisions ineffective?
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Shortly after the adoption of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), commentators widely praised the Agreement for transforming the international intellectual property system. While some considered the extension of the mandatory dispute settlement process of the World Trade Organization (WTO) to intellectual property disputes a crowning achievement of the Uruguay Round of Multilateral Trade Negotiations (Uruguay Round), others extolled the unprecedented benefits of having a set of multilateral enforcement norms built into the international intellectual property system. With twenty-one provisions on obligations that range from border measures to criminal sanctions, the TRIPS Agreement, for the first time, provides comprehensive international minimum standards on the enforcement of intellectual property rights. Notwithstanding these quick praises, some commentators provided more measured assessments. For example, in a prescient, and still highly relevant, article published shortly after the adoption of the TRIPS Agreement, Jerome Reichman and David Lange described the Agreement’s enforcement provisions as its ‘Achilles’ heel’. As they observed: The enforcement provisions are crafted as broad legal standards, rather than as narrow rules, and their inherent ambiguity will make it harder for mediators or dispute-settlement panels to pin down clear-cut violations of international law … . We predict that the level of enforcement under the TRIPS Agreement will greatly disappoint rightsholders in the developed countries, and that recourse to coercive measures will not appreciably improve the situation in the short and medium terms.
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Research Handbook on Cross-border Enforcement of Intellectual Property