Analyze The Mechanisms for Resolving IP Disputes in The Context of International Trade Agreements

Legal Article by - ZEBA KHAN (This Article was written by her during her Internship)

Abstract:

Intellectual property (IP) rights are crucial in fostering innovation and economic growth.

However, their cross-border nature often leads to disputes in the realm of international trade.

This blog / article delves into the mechanisms available for resolving IP disputes within

international trade agreements. It explores the mechanisms of various dispute resolution

systems, including the world Trade Organization (WTO) Dispute Settlement Body, ADR,

Free Trade Agreements. The discussion highlights the effectiveness of these mechanisms in

maintaining a balance between protecting IP rights and facilitating free trade.

Introduction:

Intellectual Property rights are based on the creations of mind, artistic work, literary work,

any innovation, symbol and design, names, and images that are mainly used for business or

promotion of businesses. As there is a rapid growth in new technologies in different sectors

like pharmaceuticals, IT, aerospace energy, etc. it is leading to IP disputes globally. To

resolve these disputes many organizations help resolve IP disputes among trade nations. In

the realm of international trade, protecting these rights is paramount, yet often complex due

to varying legal frameworks and enforcement mechanisms across countries. Let’s look into

the mechanisms for resolving IP disputes.

How IP Disputes Arise?

IP disputes usually arise when the owner of the IP rights alleges that its IP rights are being

infringed by another person by using or acquiring its IP without the permission of the owner.

For instance, if any person uses a trademark of any trademark holder then it’s a trademark

infringement. Likewise, if any person acquires trade secrets or protected secrets dishonestly

this may also violate the IP owner’s rights. It is the responsibility of the IP owner to protect

their rights by identifying and challenging infringement. Here are some methods that can be

used to resolve IP disputes in International Trade.

1.) World Trade Organization (WTO) and TRIPS Agreement:

The TRIPS (Trade-Related Aspects of Intellectual Property Rights) Agreement is a

pivotal multilateral trading system and establishing minimum standards for IP

protection and enforcement which has been organized and negotiated by WTO’s

Agreement on Intellectual Property among its member countries.

The TRIPS Agreement which was enacted in1995, plays a crucial role in facilitating

trade and requires all the WTO members to adhere to specific IP protection standards

for copyrights, patents, trademarks, and more. It integrates IP rights into the broader

framework of international trade law.

2.) Dispute Settlement Body:

The Dispute Settlement Body (DSB) of the World Trade Organization (WTO) is

responsible for resolving trade disputes between WTO members. The DSB is made up

of all WTO members and convenes as the General Council to address disputes. The

DSB’s authority includes:

 Establishing panels of experts to consider cases

 Accepting or rejecting the panel’s findings

 Adopting Appellate Body Reports, unless all members decide not to do so.

Disputes can arise over any agreement in the Final Act of the Uruguay Round

that is subject to the Understanding on Rules and Procedures Governing the

Settlement of Disputes (DSU). The DSB’s decisions usually align with those

of the Dispute Panel.

3.) Free Trade Agreements:

The Free Trade Agreement is that agreement which is agreed between two or more

countries by which the countries agree on certain obligations that affect trade in goods

and services, and it also helps in protecting investors and intellectual property rights,

among other topics. The United States-Mexico-Canada Agreement features detailed

rules on IP rights, including mechanisms for enforcement and dispute resolution.

Currently United States has 14 FTAs with 20 countries.

4.) Regional Trade Agreements:

Regional Trade Agreements (RTAs) are those agreements which are signed between

countries in the same geographic region that can help promote economic growth,

reduce trade barriers, and improve living standards. They also make it easier for

businesses to export goods and services to other countries in the region, and can help

countries cooperate on issues like environmental protection and terrorism.

Some of the regional trade agreements are Trans-Pacific Partnership Free Trade

Agreement (TPP) which is being negotiated by 12 countries in the Asia-Pacific region

to eliminate tariffs and lower non-tariff barriers. Other agreements are North

American Free Trade Agreement (NAFTA) it’s a regional treaty which promotes free

trade in areas of Canada, Mexico, and The United States, India-Republic of Korea

Comprehensive Economic Partnership Agreement which reduces tariffs for 17 Indian

products by South Korea, and import tariffs on 11items by India.

5.) International Arbitration:

There are some organizations for international arbitrations like the International

Chamber of Commerce (ICC) and the World Intellectual Property Organization

(WIPO) which offers arbitration and mediation services specifically for IP disputes.

Arbitration allows parties to select a neutral forum and arbitrators with expertise in IP

law, which can lead to more predictable and specialized outcomes.

While international frameworks are essential, national courts play a crucial role in

resolving IP disputes, especially when it comes to enforcement. Disputes may be

resolved in national courts, where enforcement of foreign judgements can be pursued

under treaties like the Hague Convention on the Recognition and Enforcement of

Foreign Judgements.

Cross Border Litigation involves navigation in different national legal systems,

addressing issues of jurisdiction, choice of law, and enforcement of judgements.

7.) Alternate Dispute Resolution (ADR):

ADR offers flexible, cost-effective alternatives to litigation for resolving IP disputes.

It mainly includes mediation, arbitration, negotiation, etc. which enables the parties to

find admissible solutions to their conflicts outside of traditional legal court

proceedings.

 Arbitration: It is the most emblematic and growing form of ADR. Arbitration

is the most formal form of mediation as it has a lot of similarities with the

traditional court proceedings, which involve limited discovery and simplified

rules of evidence.

 Mediation:

A voluntary process where a neutral mediator helps the parties

reach a mutually acceptable settlement. It is an informal alternative to

litigation. Mediation is used for a wide gamut of case types ranging from

juvenile felonies to federal government negotiations, it has also become a

significant method to resolve disputes between investors and stock brokers.

 Negotiation: It is the preeminent mode of dispute resolution. Negotiation

allows the parties to meet to settle a dispute. The advantage of this form of

dispute settlement is that it allows the parties themselves to control the process

and the solution. It is a direct discussion between the parties to resolve the

disputes without formal legal proceedings.

Conclusion:

Resolving IP disputes within the framework of international trade agreements

is vital for maintaining a fair and balanced global economy. While the WTO,

arbitration, free trade agreements, ADR each offer distinct advantages, no

single mechanism is without limitations. By understanding the mechanism of

each, and considering potential reforms, stakeholders can work towards more

effective and efficient resolution of IP disputes in an increasingly

interconnected world.

The flexibility and communication these methods encourage will decrease

many of the obstacles to efficient resolution of IP disputes in the global

market. As these methods are becoming more prevalent, cooperation between

WIPO and other organizations should be developed, utilizing the strength of

organizations to foster effective dispute resolution rules throughout the global

market.

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