The World Trade Organization (WTO) is an international organization that was constituted for the regulation of trade and commerce between nations. It was enacted in 1995 through the Marrakesh Agreement which was back then contracted by 123 states, thereby substituting the General Agreement on Tariffs and Trade.[1]

In pursuance of its ultimate goals, the WTO has contributed to IP Protection in two chief ways:

The first is the execution of The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). It is a multi-national agreement amongst the member states of the World Trade Organization. It lays down the standards for the protection of intellectual property and consequently applies to said member states.

It was arrived at in the continuance of the Uruguay Round of GATT and remains administered by WTO. TRIPS, apart from guaranteeing the different rights related to intellectual property, also stipulates implementation mechanisms, recourses, and dispute resolution procedures[2]

The second is the composition of an efficient dispute resolution system. The formal strategy of the dispute resolution was under intense discussion through the Uruguay Round and was ultimately set forth in the Dispute Settlement Understanding, which formed a part of the Agreement that founded the WTO. [3]

This paper highlights TRIPS Agreement and Dispute Resolution Mechanism as the two major contributions from the World Trade Organisation and aims to analyse the same, keeping in mind the latest developments that have taken place in the field of international trade and IP. It also depicts the need for revision of some of the criticised provisions in order for them to be viable for fulfilling the present needs of the global community.

WTO And Trips Agreement

The TRIPS Agreement was the outcome of several conventions that have had IP rights under their purview since the late 1800s. this includes—the Berne and Paris Convention, the UCC and the Rome Convention. The reason for the birth of the TRIPS Agreement was founded on the necessity felt by nations to safeguard IP Rights; consequently, the TRIPS has become of one the most elaborate international set of regulations on IPR.[4]

It is alleged that the US was apprehensive about the ability of forums like WIPO and the UN to discuss the fully the importance and protection of Intellectual Property on a more serious note, where the developing countries possessed the ability to oppose. It was also found that the influence of these nations was a lot less in GATT. Therefore, IP protection was proposed under the purview of GATT by the States in Uruguay Round.[5]

The IP regulatory frameworks of that time were not comprehensive and consistent. Whatever regulations were in place lacked imposition of penalties or sanctions in case of inability to comply with the provisions of the statues. In fact, a study of 1988 conducted by the World Intellectual Property Organisation discovered that maximum nations who were parties to the Paris Convention adopted only those regulations that benefitted themselves either socially or economically.[6]

It is proposed that perhaps the whole purpose of making IP a trade-related issue was due to the huge revenue losses incurred by companies due to acts of piracy.

At the Uruguay Round, the developed United States effectively headed the movement to urge both developing as well as the least developed nations into accepting the TRIPS proposal. The reason the States was successful is because of the fear that it would impose section 301 of the 1974 Trade Act.

At the GATT-WTO meeting, both the developing and the least developed countries were of the opinion that the agenda was to provide extreme safeguard of IPRs and that overindulgent safeguard of IPR could hinder the transmission of know-how and skills and would lead to surge in costs of agro and pharma products. These supplies are deeply depended on by them for adequate revenue. These countries then put forth the necessity of preserving elasticity in executing financial and societal objects of the TRIPS.[7]

Through this agreement, a pledge was taken to reduce trade-related barricades and eradicate regimes of one-sided trade permissions for affiliates ratifying Agreement. Hence, the Agreement expressed itself to be striking to the LDCs. Furthermore, to tackle the apprehensions of these nations concerning the TRIPS Agreement, a temporary period was provided to address the issues raised. [8]

Although the Agreement has been subject to several criticisms since its birth, it did manage to ease tensions amongst signatories involved in IP disputes.

Other positives include[9]:

• Developing states have been taking part in IP trade as they access the worldwide chains and accept their pioneering and imaginative capabilities.
   
• The Agreement laid out standards for the safeguard of Intellectual Property that aim to enable and encourage trade in IP. The drafters, however, intentionally left space to manoeuvre for the benefit of all signatories to protect matters of national interest.
   
• The commencement of TRIPS led to a novel concept in worldwide trade-- a resolve concerning pharma goods was implemented in Doha in late 2001. This allowed typically developing nations to raise para six of the Agreement to care for the health of the public. It relates to Compulsory Licencing and its implementation. This process permitted the manufacture of more affordable drugs in the stead of a developing nation deficient in the manufacture of pharma products.
   
• The Agreement brought transparency by necessitating WTO signatories to keep all WTO nations well-versed with domestic laws and implementation apparatuses.
   
• Enabled trade in knowledge.
   
• Led to increase in patent applications.
   
• Diversified Trademark activity.

WTO Dispute Resolution Process For Intellectual Property Rights

A significant feature of TRIPS is that disagreements amongst signatories relating to duties under the Agreement can be taken up through the Dispute Settlement System (DSS) of the WTO. The previous laws on IP did not envisage remedies at an international level. Under the DSU, the signatory nations remain devoted, when it concerns redressal of abuse of provisions of the Agreement and also the complains of the same. The DSS was formulated in a manner to make sure that there occurs an expeditions and reliable resolution of disputes amongst signatories.[10]
Stages in Resolution of Disputes[11]

1. Consultation: The DSU allows a signatory to refer to another about events disturbing the agreements entered into in the region of the latter. If a signatory requires discussions with another, the latter is to do so withing a period of thirty days. If the disagreement is not determined in sixty days, the complainant can demand a panel. A panel can also be requested if the latter party does not enter into discussions with the former.
    
2. Establishment of Dispute Panel: A request for a panel, must be given in written and must consist of issues at hand along with a summary of the basis on which such panel has been requested. This can be challenged by any of the member states. Once such request for a panel is made, DSB needs to indicate it in the meeting which proposes it as the agenda, unless it resolves otherwise. The DSB usually meets once in thirty days, however, the complainant could appeal the DSB to conduct a meeting to deliberate request for a panel. Such a conference is to be conducted fifteen days after the complainant needs that meeting be conducted. The panel normally has 3 people and they are subject to confirmation by the disputing signatories.
    
3. Proceedings: The panel is to take into consideration the written submissions as well as the arguments put forward by the disputing nations, whilst arriving at conclusions and suggestions based on the same. The same go under a review process and is circulated after approval to all member nations. Generally, this circulatory process is to be completed within 6 months, but can be extended by another 3 months.
    
4. Appellate Body Review: Panel verdicts can be subjected to appeals through an Appellate Body recognized by the DSB. The Body should have at least seven individuals, working together on a particular dispute. This body is to consider only issues of law in the reports forwarded by the Panel. They can also clarify legal stances for ambiguous provisions. The proceedings of the Board are to be classified and are not revealed to any entity. Verdicts of the Appellate Body may lead to acceptance, change or reversal of the conclusions and inferences of the panel. The findings of the Body are to be acknowledged and are not to be subjected to changes unless there is a resolution to that effect in 30 days after such findings are circulated to the signatories
    
5.  Adoption of Panel Reports/Appellate Review: In two months' time, the adoption of the Findings Report is to be implemented.
    
6. Implementation of Reports: Once the decision has been made and the findings indicate that a member has flouted its obligations under the Agreement, it shall be implemented within thirty days.

As per the DSU, a reasonable time is given to forward the implementation of the decision. Such period may be:

• One that is wished-for by the signatory and accepted by the Board
• In case there is no approval, the time period that is settled by the disputing parties after forty-five days of acceptance of the report.
• In case the parties fail to agree, the time decided by arbitration.

Panels for Compliance
In case there exists an issue with regard to acquiescence, either of the parties can request the establishment of Compliance Panels. In case the signatory fails to observe the decision within the period put forth by the Panel, a compensation agreement may be entered into.[12]

The Signatories may even opt for arbitration as an alternative way of settling existing disputes. These members are to agree on terms of the process and must notify the same to the remaining members before the process of arbitration is resorted to. Parties other than the disputing parties may act as parties to the arbitration on the pre-condition that they have agreed to have arbitration as an alternate means of dispute resolution. Further, the members must agree to the final verdict given at the end of the arbitration process. The awards shall be informed to the DSB accordingly.[13]

Two of the most noteworthy cases decided by the WTO DRP were the India Mailbox Case and the Canada Generic Pharmaceuticals Case. In the Mailbox case, the major issue was the Mailbox rule of India which allowed patent applications for both pharma as well as agricultural products. It also provided for exclusivity for their promotion. Article twenty-seven of the TRIPS Agreement was at issue.

This case was referred to the Appellate authority to revise the verdict of the Panel that said that the filing system wasn't inconsistent with Article 70.8 and that private promotion rights were not in place, thus violating Article 70.9. The appellate authority upheld both the findings but excluded the legitimate expectations as a standard to understand the Agreement.[14] In the Canada Generic Pharma Case, provisions of the Patent Act of Canada were in issue-specifically the provisions of regulation and stockpiling.

The Patented pharmaceuticals from the European Communities were the products that were in issue. The panel was of the opinion that the measures under Art. 30 were not justifiable. Thus the stockpiling provision was not consistent with Art 28.1. The Panel also discovered that the opposing party did not succeed proving that the supervisory assessment provision categorized on the field in which the tech belonged, under Art 27.1.[15]

Criticism: Trips Agreement And WTO Dispute Settlement System In IPR

TRIPS Agreement

1. The ineptness of sharing of technological advancements and invention; and allowance in both fiscal as well as procedural support as directed by Art 66 and 67 to developing nations and LDCs. TRIPS is comparatively unambiguous when it concerns the duty to protect IP but remains silent on what constitutes adequate protection.[16]
    
2.  Failure to describe a developed, developing and LDCs. This indefiniteness hinders enforcement.[17]
    
3. Art. 66 directs indirect pressuring on autonomous companies to handover expertise and know-how to developing nations and LDCs. In several technologically advanced states, governments don't exert control over private companies when it concerns the utilisation of their own technology. The Agreement itself overthrows the pledge of developed nations. They turn to legal details to go back on their duties. They maintain that Art. 66 simply directed provision of inducements to private enterprises, short of any duty to pressure them to allocate their technology with developing nations and LDCs.[18]
    
4. As per Art. 67, developed nations are to propose practical and monetary aid to DCs and LDCs on appeal and on commonly settled terms. Such aid is to include legal guidelines and the founding of workplaces and training. Be that as it may, several commentators dismiss the efficiency of this provision.[19]
    
5. Public Health: TRIPS took form in the Doha session wherein the Doha Declaration was signed. The intensive determination of DCs and NGOs aided discussion on public health, particularly those related to HIV/AIDS and added epidemics. The Declaration proposed that the Agreement must not disallow the signatories from taking steps to ensure the protection of the health of the society as a whole. The scale of the problems relating to health combined with patents on pharma contribute to insufficient available remedies.[20]
    
6. TRIPS allows its signatories to pick whether they would allow a national exhaustion principle or an international exhaustion principle. The former permits the prices to be set in a different way in distinct markets whereas the latter avoids the same, as because parallel trade permits arbitrage amongst markets. This price discrimination need not be in the best interest of the public. The developing nations usually are against re-entering TRIPS provisions on the subject of exhaustion of IPRs. It is possible that the driving force is the inducements facing individual countries.[21]
    
7. Several states are intentionally observing norms in different fora explicitly to unobserve TRIPS commitments. The fact that many important IP cases are conducted under fora other than WTO is a serious problem for TRIPS. Further, the importance of the Agreement is decreasing because it has not been able to keep up with technological advancements. Further, some other indicators for the same include:
   
   • Several new IP agreements that cover those matters that are omitted from the ambit of TRIPS;
   • Several free trade agreements (FTAs);
   • The inadequate usage and influence of WTO DSS to determine TRIPS clashes.[22]
      
8. Special 301 is a US trade law that depicts the ineffectiveness of the Agreement. It permits punitive trade-related action counter to nations that provide insufficient safeguards to US IPRs.[23]

WTO DSS

1. There exists no scope for non-governmental organisations or Non-State Actors to participate in the DRP.
    
2. The directive of the World Trade Organisation is to encourage free trade and it is not always apt to measure the development of a nation, the labour, health infrastructure, IP and other problems that are influenced by the WTO reports which are executed.[24]
    
3. The DSU is branded by several chances for conciliation, mediation, arbitration. This method basically promotes the diplomatic values that form the basis of the Understanding, along with the bodies envisaged by it. However, this has turned out to be more of a disadvantage as it rests on secrecy, lacks due process, promotes authoritarianism and whimsical verdicts.[25]
    
4. Ability and Prejudice: Persons assisting the disputes before the Organisation worry that perhaps the bodies which conduct hearings and review written submissions are not as abled as they should be. The problems are unavoidably intricate and those appointed to give verdicts need not be qualified enough to understand the issues at hand or the implications of their decisions on the areas where the problems lie. Additionally, matters of bias rise after people of signatories face equal actions as those in the disputes.[26]
    
5. The Secretariat has taken the responsibility to fill vacuoles in the interpretation of the Agreements of the WTO but such interpretations are not subjected to review and without referring to the signatories of the Agreements.[27]
    
6. Art 3.3 of the DSU provides that quick and efficient decision making is important when it comes to the entire operating of the Organisation and it helps maintain an equilibrium of both rights and duties of the signatories. Be that as it may, delay yet remains as one of the major hindrances that the system faces.[28]
    
7. Problems Specific to Developing Countries:
   
   • Several signatories, specifically the developing nations are of the opinion that the entire DSS is unnecessarily complex and very expensive, which results in insuperable manpower and not to mention monetary complications for DCs. Several of these nations lack sufficient skill in legal aspects of WTO to be able to settle disputes on their own and are thus forced to hire external counsel, which results in massive expenses. Because of the lack of domestically-grown know-how, some nations are forced to take help of foreign counsel.[29]
      
   • Inability of developing nations to impose decisions or verdicts against powerful violating WTO signatories.[30] Despite the fact that the DSU allows retribution for non-compliance through the trade restrictions, developing nations which typically have smaller markets are unable to levy satisfactory monetary or political losses in the bigger signatories.[31]
      
   • Lack of apparatuses to recognize and convey trade-related blockades to WTO counsel.
      
   • Significant percentage of developing nations' trade fall within regulations not enforceable.

Conclusion and Suggestions
From the above, it can be seen that although WTO has achieved various milestones since the introduction of Intellectual Property within its ambit, it still has a long way to go. Both arms of the WTO—the TRIPS Agreement as well as the DSS/DRP require monumental changes in order to ensure that they benefit not only specific nations but also those who depend severely on their Intellectual Property to move towards a developed future. In this light, the researcher puts forward some recommendations that might fill the lacunae in the existing legal framework and that may provide some interim relief to parties affected:

For TRIPS

• Commence all-inclusive research regarding the effect of IPRs title on the development of the economy and to recognize outlines of concentration in technology.
   
• Those willing to learn from Developing nations can be trained in OECD training centres. For this, a certain fund is to be allocated. This will help in interpreting provisions of TRIPS.
   
• Handover of IP know-how to LDCs in definite areas desirable to contribute in both public as well as private sectors.
   
• Instalment of IP-related facilities, gear, and placement of staff to aid and revolutionize IP bureaus in the LDCs.
   
• Contribute in the growth of complete study supplies and training plans for LDCs.
   
• To encourage LDCs to use Art. 31(b), without any chance of its exploitation:
  
  • Slowing handover of pharmaceutical products until adequate information regarding the same has been given by developed countries to those which are not. This would ensure that compulsory licences are issued in a timely manner.
  • To save nations from misusing Art. 31(b), the WTO can impose a suspension of signatories for violation. A committee can be created to inquire into the misuse and can decide accordingly.

For DRP

• Introduction of a system to aid countries to communicate those objects/actions that serve as trade blockades are important. This can aid member countries to approach the Organisation to monitor and deliberate on the same more accurately and expeditiously.
   
• If the regulations are separated based on the capacity of the nations to trade, the dispute settlement will not garner much support. This classification needs to be stopped and adequate safeguards against the same need to be adopted. Certain preferential regulations can be adopted to mitigate the retaliatory action taken by developed countries against the ones which are not if certain actions are taken by lesser developed countries to prevent developed countries from evading their responsibilities.
   
• The utilisation of certain procedures which are envisaged under the DSU can be used to aid speedy disposal of cases.

End Notes:

1. WTO Agreement: Marrakesh Agreement Establishing the World Trade Organization, U.N.T.S. 154, 33 I.L.M. 1144 (1994).
2. TRIPS: Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994.
3. Bakardjieva Engelbrekt Antonina, The WTO Dispute Settlement System and the Evolution of International IP Law: An Institutional Perspective (2011).
4. David M. Fox, Technology Transfer and the TRIPS Agreement Are Developed Countries Meeting Their End of the Bargain, 10 HASTINGS SCI. & TECH. L.J. 1 (2019).
5. Alphonso B. Kassor, The World Trade Organization's Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement: The Compelling Challenges for Developing and Less Developed Member Countries-Implementation and Enforcement, 9 CYBARIS INTELL. PROP. L. REV. 107 (2018
6. Id.
7. Fox, Supra note 4.
8. UNCTAD/DITC/TNCD/2006/8
9. Id.
10. Matthijs Geuze, WTO Dispute Settlement Practice Relating to the TRIPS Agreement, 2 J. INT'L ECON. L. 347 (1999).
11. Hiaring, Fish or Fowl? The Nature of WTO Dispute Resolution under TRIPS, 12 ANNUAL SURVEY OF INT'L & COMPARATIVE L.(2006)
12. Hiaring, Supra note 11.
13. Id.
14. WT/DS50.
15. WT/DS114.
16. Omolo Joseph Agutu, Least Developed Countries and the TRIPS Agreement: Arguments for a Shift to Voluntary Compliance, 20 AFR. J. INT'L & COMP. L. 423, 429 (2012).
17. Id.
18. Alphonso B. Kassor, The World Trade Organization's Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement: The Compelling Challenges for Developing and Less Developed Member Countries-Implementation and Enforcement, 9 CYBARIS INTELL. PROP. L. REV. 107 (2018).
19. Id.
20. Gian Carlo Moschini, Intellectual Property Rights and the World Trade Organization: Retrospect and Prospects (Mar. 20, 2020, 10:00 AM), https://www.card.iastate.edu/faculty/profiles/giancarlo_moschini/Moschini-TRIPs-preprint-Oct-04.pdf.
21. Id.
22. Donald Harris, TRIPS After Fifteen Years: Success or Failure, as Measured by Compulsory Licensing, 18 J. INTELL. PROP. L. 367 (2011).
23. Moschini, Supra note 20.
24. Kim Van Der Borght, Dispute Settlement In The World Trade Organization ,94 A.J.I.L. 427 (2000).
25. J.L. Dunoff, The WTO' s Legitimacy Crisis: Reflections on the Law and Politics of WTO Dispute Resolution, 13 AM. REV.INT'L ARB. 197 (2002).
26. Hiaring, Supra note 11.
27. Id.
28. Nottage, Hunter, Developing countries in the WTO Dispute Settlement System, GEG W.P. (2009).
29. Id.
30. M. Footer, Developing Country Practice in the Matter of WTO Dispute Settlement', JOURNAL OF WORLD TRADE (2000).
31. Id.
32. Nottage, Supra note 28.