QUESTION: The inclusion of TRIPS Agreement in the WTO Agreements has been sharply criticized as an act of forum shifting with detrimental effects on the future of the WTO. Discuss this proposition*
Critical Analyses to the “Forum Shifting” and “Detrimental Effects” Proposition: from the Approaches of History, Political Science and Positivism Legal Analysis
Table of Contents
II. Some Facts in the History of the TRIPS Agreement Negotiation
III. The “Strategy Linkage” between IP and WTO
IV. Legitimacy of “Forum Shifting”
Although the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) is usually regarded as one of the three pillar of law family of World Trade organization (WTO), the relationship between intellectual property (IP) and trade seems still being a controversial topic in the legal and political discussions on WTO. Besides questioning the implementation of TRIPS Agreement, it seems that some opponents has sharply criticized the inclusion of TRIPS Agreement in the WTO Agreements as an act of “forum shifting” with “detrimental effects” on the future of the WTO.
To discuss this proposition, a person may find many approaches. With the astrologic method, he/she may “back to the future” and make an empirical field survey to the offices, or detribalized sediments, of WTO. With the historical methodology, he/she may revisit the love story between WTO forum and IP issues then confirm whether they are as match as what the proponents of TRIPS Agreement believe in. From the perspective of political science and/or international relationship, he/she may look for the reasonable connection between WTO forum and IP issues, and then politically anticipate the possible evolution of WTO. Insisting on the legal positivism, he/she should read and interpret the documents, and apply the provisions of WTO and/or GATT (before 1994) to justify the above proposition.
Being back to the future is not practical, so the second part of this essay will ignore this approach but merely revisit the history of TRIPS Agreement negotiation to clarify whether, when and by what way the “forum” was shifted. Based on the history facts, the third part will focus on the so called “strategy linkage” analysis and illustrate why the forum shifted ultimately before the establishment of WTO. After these two approaches, the fourth part will answer the question on legitimacy of “forum shifting” by reading the binding legal provisions. Finally, the conclusion part will anticipate the future of WTO and summarize the arguments in this short essay.
II. Some Facts in the History of the TRIPS Agreement Negotiation
Most people have no ability to augur the destiny of WTO since they may not afford the traveling expenses to the future, whereas it is relatively cheaper to recall the history of the TRIPS Agreement negotiation in WTO. Many people have illustrated the story in details, so it will be redundant to narrate the history of IP issues month by month. What I hope to point out here are some facts which may not be emphasized in the research achievements before, whereas these facts are significant to evaluate the estimation of “detrimental effects”.
Firstly, the early draft of General Agreement on Tariffs and Trade 1947 (GATT 1947) included clauses that implied an organization such as the International Trade organization (ITO). Because the authority of delegated by the U.S. Congress to the president did not include negotiate an Agreement to establish an international organization, these clauses had to be redrafted.  However, the GATT 1947 still designed to operate under the umbrella of the ITO once it came into being. Unfortunately, the Havana Chapter for an International Trade organization never came into force because the U.S. congress did not ratify it, and “no State was interested in establish an organization for trade of which the United States…would not be a member”. This fact reminds us that the GATT 1947 “limped along for nearly forty years” not because of what issues it discussed, but who were discussing the issues.
Secondly, in the nearly forty years, the GATT 1947, as an actual forum for multilateral negotiations, had been continuously enlarging its scope of topics, and IP was not the first one that originally not included in the GATT 1947. For instance, neither services nor investment measures are of GATT subjects but are negotiated in UR. Non-tariff barrier is another persuadable example, which is included in the negotiations from Kennedy Round. As Srinivasan stated, “almost all the eight rounds of the MTNs were the outcomes of U.S. initiatives and insistence”.
Thirdly, the UR was not initially started for establishing WTO. It was the U.S. brought the IP issues into the UR negotiation. Nevertheless, the U.S. did not formally agree to establish WTO until December 1993. On the contrary, the inclusion of TRIPS Agreement into the UR discussions started earlier than the inclusion of these new versions of WTO. Until February 1990, it was the Italian Trade Minister Renato Ruggiero first floated the idea of establishing a new international organization for trade, and then Canada and European Community followed the suit. This fact tells us that even in a circumstance in which IP issues had already included, the WTO could also be established. In another word, a logic conclusion from this fact is, at least, the IP issues, was proved empirically, did not beat down the proposals to establish WTO.
Fourthly, even in the Havana Charter, the so called “forum shifting” had started. It stated “the Members undertake: not to apply restrictions … to prevent the importation of such minimum quantities of a product as may be necessary to obtain and maintain patent, trade mark, copyright or similar rights under industrial or intellectual property laws.”
To sum up, the above revisit of the history answered whether (yes), when (before the proposal of establishing the WTO) and in what way (similar to the other earlier issues such as services, non-tariff barriers and investment measures) the discussion of TRIPS Agreement was shifted to GATT-WTO forum.
III. The “Strategy Linkage” between IP and WTO
Sean Pager stated that the WTO has traditionally focused on “negative integration,” i.e., liberalizing trade by reducing tariffs and stripping away regulatory barriers. TRIPS Agreement signaled a controversial shift to a "positive integration" approach that goes beyond de-regulation to affirmatively re-regulate (or harmonize), imposing global standards in place of national ones. If we ignore the mistake, as the above part had illustrated, of not using “GATT” but “WTO”, this statement is correct. In his article, Pager analyzes the TRIPS Agreement as a case study to evaluate the risks which may undermine the WTO’s legitimacy, and conclude that “far from being an unqualified success, the use of linkage to bring TRIPS Agreement into the WTO resulted in a flawed regulatory bargain that might have done more harm than good.” I will not disagree with this conclusion to the linkage strategies in the regulatory dimension. Furthermore, in this dimension, the inclusion of current TRIPS Agreement provisions into the WTO really causes some detrimental effects to the infrastructure of WTO and its Agreement systems.
The term of “linkage”, however, is a conception in political science. David W. Leebron illustrated the concept of linkage in details, and the “linkage strategy” used by Pager is distinct to the “strategy linkage”. According to Leebron, “strategy linkage”, different to the “substantive linkage”, is not necessarily based on any connection between the norms but, rather, on negotiation strategies and outcomes. In another word, it is a utilitarian political conception. Although the pure strategic linkage, without any substantive argument, is not generally accepted in multilateral contexts, the main norm in the political concerns on negotiation, if there is one, is reciprocity. On the one hand, to the developing countries, it seems the only way to open the door of the negotiation of agriculture subsidies is to accept IP issues even there are no strong substantive reasons. On the other hand, to the developed countries, although the “positive integration” of TRIPS Agreement may course the great embarrassment to the implementation of WTO law, the only way to pull the developing counties back to the table is to let this embarrassment along.
Also, since strategy linkage is a political approach, the “forum shift” becomes reasonable, though it may hurt the proponents of Hans Kelsen’s Grundnorm. Taking the issues on investment measure as an example, investment regime could be incorporated into some existing multilateral institution, such as the IMF, the World Bank, or the WTO. Each of these institutions could make a very substantive claim to being the proper home for a new regime for foreign investment. In the arena of IP, when the selection between WIPO and WTO comes to the political approach, how can one evaluate it with other non-political norms?
IV. Legitimacy of “Forum Shifting”
Before start of the legal analysis, I have to remind three important factors in discussing our topic. Firstly, what we are talking about is the impact of the inclusion of TRIPS Agreement to the WTO but not to the WIPO and/or GATT. So the provisions which are used to evaluate the “forum shifting” shall be WTO law. That is, the whole binding sources of WTO regulations, including Marrakesh Agreement Establishing the World Trade organization (WTO Agreement) and it’s Annexes and other sources. Secondly, since the aim of legal analysis is merely to judge whether the law be complied correctly, and it can not solve the political controversies, so whether the “forum shifting” leads “detrimental effects” to the world or any member of WTO can not be legally answered in this part. However, in my opinion, the compliance with the WTO law is enough to legitimate the “forum shifting” because, from the approach of legal positivism, correct implementation of law is the standard of legitimacy. Thirdly, what we are doing is evaluate the legitimacy of “the inclusion of TRIPS Agreement in the WTO Agreements” (or “forum shifting”) but the justness of TRIPS Agreement itself.
It is very easy to find many articles in WTO Agreement that legitimate the act of “forum shifting”. In Preamble, which be recognized binding, the objectives of the WTO leaves the space for the WTO forum to the IP issues on the increase of standards of living and the growth of real income and effective demand. If this is still controversial, the Article III of the WTO Agreement clearly states:
The WTO shall provide the forum for negotiations among its Members concerning their multilateral trade relations in matters dealt with under the Agreements in the Annexes to this Agreement. The WTO may also provide a forum for further negotiations among its Members concerning their multilateral trade relations, and a framework for the implementation of the results of such negotiations, as may be decided by the Ministerial Conference.
TRIPS Agreement is without-question one of the Agreements in the Annexes. So the discussion of IP, even it is a“forum shifting”from WIPO, is actually a legitimate activity. There are many more other provisions legitimate the forum shifting and it is not necessary to list all of them out. What I will further illustrate here is the case of the Amendment to the TRIPS Agreement in August 2003. It is a great production of the nearly ten year’s discussion in the WTO forum, and it also self-legitimated the inclusion of TRIPS Agreement and the forum shifting.
The proposition of “the inclusion of TRIPS Agreement in the WTO Agreements is an act of forum shifting with detrimental effects on the future of the WTO” is so strong at the first glance. However, when we analysis this argument by the historical, political and the positivist approaches, the self-contradiction of this statement floats to the surface immediately. From the historical perspective, this proposition confused the evolution process from the GATT 1947 to the WTO; from the positivist legal approach, this proposition ignored the fact that the TRIPS Agreement is a part of the system of WTO law, so the forum for the TRIPS Agreement is not only a merit to the discussion the improvement of binding law but also a requirement of implementing the law. As to the political approach, one should only follow the standards of the political science, which is utilitarian balance the interests by the way of reciprocity, when he is evaluating some political acts. Eventually, the opposition to the proposition discussed in this essay is not equal to the embrace to every provision of the TRIPS Agreement and other WTO laws.
* This question was raised in the WTO Law course in City University of Hong Kong, School of Law; Course Leader: Mr Hans Mahnke.
 For instance, the effect to the newly amendments of IP legislations fulfilling the requirements of TRIPS AGREEMENT in developing countries is doubtful. See J. H. Reichman, Enforcing the Enforcement Procedures of the TRIPS Agreement Obligations, in Thomas Cottier and Peros C. Mavioidis, ed. Intellectual Property: Trade, Competition and Sustainable Development (2004), p. 11.Another example is the issues on the harmonization and application of Disputes Settlement Understanding (DSU) to the IP rights. See Ernst-Ulrich Petersmann ed. International Trade Law and the GATT/WTO Dispute Settlement System (Kluwer Law International: London, Hague, Boston, 1997), pp. 89, 93.
I actually have not found an exact word by word expression of this proposition. However, some relative arguments are found. Of the “forum shifting” narrative, Peter K. Yu mentioned that the including of IP discussions in the Uruguay Round “was the breakdown of the 1981 Diplomatic Conference in Nairobi over the revision of the Paris Convention that forced developed countries to shift to the General Agreement on Tariffs and Trade (GATT)/WTO forum.” See Peter K. Yu, TRIPS Agreement and Discontents, 10 Marq. Intell. Prop. L. Rev. 369, at 375, 376. Of “detrimental effects”, by concluding Peter Gakunu’s proposition, Christopher May said that “even in 1989 for many it was clear what the detrimental effects of an international trade agreement on IPRs would likely be.” Nevertheless, one should be reminded that May was not talking about the “detrimental effects” on WTO but the “detrimental effects” on IPRs. See Christopher May, Cosmopolitan Legalism Meets ‘Thin Community’: Problems in the Global Governance of Intellectual Property. Government and Opposition 39 (3), (2004), 393-422; and Peter Gakunu, Intellectual Property: Perspective of the Developing World, 19 Ga. J. Int’l & Comp. L. 358 (1989)., at 375, 376. Of “detrimental effects”, by concluding Peter Gakunu’s proposition, Christopher May said that “even in 1989 for many it was clear what the detrimental effects of an international trade agreement on IPRs would likely be.” Nevertheless, one should be reminded that May was not talking about the “detrimental effects” on WTO but the “detrimental effects” on IPRs. See Christopher May, Cosmopolitan Legalism Meets ‘Thin Community’: Problems in the Global Governance of Intellectual Property. , (2004), 393-422; and Peter Gakunu, Intellectual Property: Perspective of the Developing World, (1989).
 Back to the Future is a U.S. movie in 1985 directed by Robert Zemeckis; see http://www.imdb.com/title/tt0088763/, visited on 12, Oct. 2006.
 See T. N. Srinivasan, Developing Countries and the Multilateral Trading System (Westview Press, 1998); John Jackson, The World Trade organization: Constitution and Jurisprudence (Royal Institute of International Affairs, 1998); and Adronico O Aded, origins and History of the TRIPS Agreement Negotiations, in C. Bellmann, G. Dutfild and Ricardo Melendez-Ortiz ed., Trading in Knowledge (ICTSD, 2003).
 T. N. Srinivasan, Developing Countries and the Multilateral Trading System (Westview Press, 1998), p. 10.
 Peter Van den Bossche, The Law and policy of the World Trade organization (Cambridge, 2005), p. 80.
 John Jackson, The World Trading System (Cambridge, Mass.: MIT Press, 1989), p. 89.
 T. N. Srinivasan, Developing Countries and the Multilateral Trading System (Westview Press, 1998), p. 32.
 T. Stewart, The GATT Uruguay Round (Klumer Law and Taxation, 1993), Vol. III, pp. 1942-1943.
 Peter Van den Bossche, The Law and policy of the World Trade organization (Cambridge, 2005), p. 81.
 See Article 21.3. (c) of Havana Charter for An International Trade organization. http://www.wto.org/English/docs_e/legal_e/havana_e.pdf.
 Sean Pager, TRIPS Agreement: A Link Too Far? A Proposal for Procedural Restraint on the Regulatory Linkage in the WTO, 10 Marq. Intell. Prop. L. Rev. 215, at 217.
 See Shujie Feng, SHI LUN WTO ZHENG DUAN JIE JUE JI ZHI ZAI TRIPS XIE YI GUO NEI SHI SHI LING YU DE JU XIAN XING, Vol. 3 Global Law Review 2006 (Beijing).
 See David W. Leebron, The Boundaries of the WTO: Linkages, 96 A.J.I.L. 5, at 6-11.
 Sean Pager, TRIPS Agreement: A Link Too Far? A Proposal for Procedural Restraint on the Regulatory Linkage in the WTO, 10 Marq. Intell. Prop. L. Rev. 215, at 252.
 See David W. Leebron, The Boundaries of the WTO: Linkages, 96 A.J.I.L. 5, at 11.
 See Robert O. Keohane, Reciprocity in International Relations, 40 INT’L orG. 1 (1986); Alan L. Winters, Reciprocity, in The Uruguay Round: A Handbook on the multilateral Trade Negotiations (J. Michael Finger & Andrzej Olechowski eds., 1987), p. 45.
 See Hans Kelsen, The Pure Theory of Law (Berkeley: University of California Press, 1967).
 Peter Van den Bossche, The Law and policy of the World Trade organization (Cambridge, 2005), p. 87.
 See Implementation of Paragraph 11 of the General Council Decision of 30 August on the Implementation of Paragraph 6 of the Doha Declaration of the TRIPS Agreement and Public Health: proposal for a Decision on an Amendment to the TRIPS Agreement, IP/C/41 (6 December 2005); and Doha Work Programme: Ministerial Declaration, WT/MN(05)/W/3/Rev. 2 (18 December 2005), at Para. 40.