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Abstract:
The drafting of the Handbook on negotiating development oriented intellectual property
provisions in trade and investment agreements (Handbook here forth) was guided by the
objective of supporting Asia and the Pacific economies in reaching successful and
sustainable outcomes in trade agreement negotiations that involve intellectual property. To
accomplish this objective, this Handbook first introduces the multilateral intellectual
property system and explains the trends for additional intellectual property protection in
international trade and investment agreements.
Chapter 1 presents the main international intellectual property treaties, with a focus on the
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and its main
features, focusing particularly on the flexibilities afforded by TRIPS. In addition, the chapter
introduces how intellectual property rights can be protected via international investment
agreements (IIAs), in particular the public policy implications of such protection, using
landmark disputes such as the Plain Packaging challenges mounted by Philip Morris in
Uruguay and Australia.
Chapter 2 explores the topography of intellectual property inclusive trade agreements in
Asia and the Pacific, based on the dataset created during the project. The chapter presents
the stylized facts from the 91 Asia-Pacific trade agreements, in force in 2016, that contain
intellectual property rights alongside brief narrative expositions of the findings based on the
dataset.
Chapter 3 builds on the international intellectual property framework and the empirical
foundation on intellectual property-inclusive agreements from the Asia-Pacific in order to
recommend approaches for the negotiation, interpretation and implementation of
intellectual property provisions in free trade and investment agreements. These
recommendations further benefit from earlier research work by a broad range of intellectual
property-experts in a project conducted at the Max Planck Institute for Innovation and
Competition Law. They are primarily aimed at offering suggestions for retaining important
flexibilities of the multilateral intellectual property treaty framework – so as to ensure that
countries remain able to design an intellectual property system that suits local needs.
Chapter 4 concludes the Handbook by providing examples from state practice on
provisions that can be used to integrate international intellectual property flexibilities into
trade and investment agreements, and analyses which of those examples are fit for
purpose.
