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    NOTES. International Trade Law and Policy-20-22

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    NOTES. International Trade Law and Policy-20-22

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    NOTES. International Trade Law and Policy-20-22

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    of 3

    INTERNATIONAL TRADE LAW AND POLICY.

    Ángela Yanguas Luque

    SESSION 13
    TRIPS – Trade-Related Aspects of Intellectual Property Rights.

    Introduction The TRIPS Agreement (1994)

    Connection with international trade → WIPO (organization)


    ● TRIPS substantive standards of protection: copyright, trademarks,
    Geographical indications, Industrial designs Patents, Layout-designs of
    integrated circuits, Protection of undisclosed information, Control of
    anti-competitive practices in contractual licenses

    Tries to create a harmonize agreement (like the SPS and TPT)

    Rules comes from:


    ● The Agreement sets these standards by requiring, first, that the
    substantive obligations of the main conventions of the WIPO,
    ● the Paris Convention for the Protection of Industrial Property (Paris
    Convention) and
    ● The Berne Convention for the Protection of Literary and Artistic Works
    (Berne Convention) in their most recent versions, must be complied
    with.

    Covered rights Copyrights: Harry Potter

    Trademarks: iPhone

    Geographical indicators: champagne

    Patents: covid-19 vaccines

    (Minimum cover)

    Agreement There are not LIKE PRODUCTS


    - Nationals of the WTO members are protected

    1) Litigation in National Courts


    2) WTO litigation

    To get into WTO litigation, they need to convince their government to start the
    WTO litigation, since they are losing money, or serious damage to the country.

    STEPS 1) Consultations
    2) Panel (if complainant wants)
    3) Appeal to the Appellate Body

    IP dispute

    20
    INTERNATIONAL TRADE LAW AND POLICY. Ángela Yanguas Luque

    SESSION 14
    REVISE SESSION

    Article III:4 NT principle


    - No sense to do the same health checks if the problem is in sea salmon,
    local lake salmon does not have that problem.

    Also MFN principle → always at play,


    - Foreign imports of lake salmon
    - Also imports of lake salmon, therefore, also imports on lake salmon for
    MNF

    Necessity test:
    - Mainly for Art. XX for general exceptions → just for the ones that have
    the words necessity
    - Proportionality test = necessity test (more or less, includes a careful
    analysis)
    - SPS goes a bit further

    SPS and TBT → LEX SPECIALIS → if this specific issue is contemplated on


    either of the two agreements, the specific agreement applies. If it does not
    contemplate that issue, it goes under Article XX.
    - BUT, can go under the scope of both GATT and SPS or TBT
    - The angle of SPS and TBT compared to GATT is different

    Similar to the Korean beef case. Art. III:4 → and then article XX:d (prevetion)

    Certify seller not a standard under the TBT.

    TBT: applies: technical regulation


    - PPMs – the way see turtles were caught
    - Relation to the current characteristics of the product or production
    methods
    - Properties of the product

    If there is an specific international standard for jamon iberico, then China should
    use the standard that as a base to their country regulation.
    - You can go further, but you have to justify why and that it is not
    discriminatory
    - Preferable to use the international standard for Harmonization

    (How you should sell it in the market does NOT apply)

    If there are current standards,

    General Exception of the NT


    -

    Shrimp case Violation art. XI GATT


    1. US why you are doing this?
    2. Burden of proof goes to the US
    3. US is not for being discrimination, but to be carefil to protect sea turtles
    4. But US see the exception go the XX:g
    5. Burden of proof to the Malasians to proof that this exception applies,
    they

    CONSISTENT AND NOT DISCRIMINATORY WAY

    21
    INTERNATIONAL TRADE LAW AND POLICY. Ángela Yanguas Luque

    GATT Legitimate objective close → article XX and XXI and XI (just for the provision of
    quotas article XI)
    - Close list
    - General exceptions → apply to all the articles of the GATT

    SPS Three tiers test – to see if there was a violation


    - If there is a way of violation

    Legitimate objective close→ health protection

    TBT Article 2.2 → technical regulations


    Legitimate objective open → Open list of justifications

    Like, direct competition or perfect substituitables


    Paragraph 2. First sentence, paragraph 2, 3, and 4
    -

    Chapeau Make sure that what you are invoking with the article

    - Hidden discrimination and unjustifiable


    - Aim at giving protection to the domestic
    - Measure that are not consistent

    Korean beef → fail in the necessity (too far)


    Chapeau → not apply consistently among all (Brazil Tyres case, not all
    countries in the same way)
    - For health reasons → e.g. prohibiting sider and not beer
    - JUSTIFICABLE E.g. sider: young people could tend to consume more
    sider since is more sweet
    - BUT, NOT JUSTIFIABLE → if you have s strong beer industry in the
    country, and you prohibit sider just to protect the domestic product.
    -

    22

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