Doctor of Philosophy (PhD)
Department of Economics - Faculty of Commerce
Shanker, Daya, Fault lines in the World Trade Organization: An analysis of the TRIPS agreement and developing countries, PhD thesis, Department of Economics, University of Wollongong, 2005. http://ro.uow.edu.au/theses/497
The thesis examines the role and position of developing countries in the World Trade Organization (WTO) in relation to the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). The analysis was done through three case studies involving major developing countries such as Brazil, India and Argentina, major developed country such as the USA and the regional trading bloc, the EC. The case studies identified a number of areas of conflict such as the exemptions under Article 30 of the TRIPS Agreement, compulsory licensing under Article 31 of TRIPS, the exhaustion of rights after sale of the patented products along with parallel imports, local working, and the role of competition policy to deal with the abuses arising out of patenting monopolies. The case studies were followed by two chapters dealing with attempts to resolve the conflicts through the Dispute Settlement System of the WTO and the Ministerial Conference. The significant developments in this regard have been the WTO Panel Report in Canada-Protection of Pharmaceutical Patents removing object and purpose from interpretations of the TRIPS Agreement, paras 4 and 5 of the Doha Declaration (Ministerial Declaration at Doha dealing with Public Health) restoring object and purpose in interpreting the provisions of the Treaty Agreement as per customary rule of treaty interpretations and the Paragraph 6 solution of 30th August 2003 introducing export of the patented products as one of the rights under patents. The analysis suggests that developing countries have a limited role to play in such negotiations and interpretations of international treaty such as the TRIPS Agreement and their participation in such negotiations and interpretations is not very effective. The last part of this thesis deals with recommendations and suggests that suitable competition provisions in the legal system of developing countries may prevent or lessen abuses originating from patenting monopolies including issues of parallel trade, discriminatory pricing and non-local working.
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