Implementation and Further Negotiations
Negotiating states adopted a package deal in 1994, which paved the way to the establishment of the WTO. There were, however, a number of issues, which had not been resolved in the context of the Uruguay Round. These unresolved issues were sometimes left aside for future negotiations, but there were also several cases where the treaties adopted included provisions calling for further negotiations on specific issues and a number of elements that required to be specified at the level of implementation.
Article 66(2) calls for developed states to take steps to foster technology transfer to least developed countries without specifying how this is to be achieved and how far developed countries must go in helping least developed countries. Implementation of this provision has not been very effective and has not been to the satisfaction of least developed countries 48. The TRIPS Council – the body charged with monitoring the operation of the TRIPS Agreement – ended up adopting a decision calling on developed countries to provide annual reports on the measures they have taken up and the actual technology transfers involved 49.
There are other cases where the TRIPS Agreement was the result of a compromise that some countries were hoping to see modified. In this case, there is an in-built negotiating agenda within the Agreement, which forces states to go back to the negotiating terms and conditions. This is, for instance, the case of Article 27(3)b of the TRIPS Agreement, which imposed on member states the renegotiation of the provisions allowing the exclusion from patentability of plants and animals as well as the possibility to introduce a sui generis regime for the protection of plant varieties. In this specific case, the negotiations, which were due to take place in 1999, have been going on since then, as no consensus on the revision of Article 27(3)b has been found. The re-negotiation of Article 27(3)b has, in fact, become part of a broader agenda in the wake of the launch of new trade negotiations at the Doha Ministerial Conference. This has led to the negotiations on Article 27(3)b being linked to the broader question of the relationship between the Biodiversity Convention and the TRIPS Agreement as well as the question of the protection of traditional knowledge 50.
Notes and References
48 See, for example, Constantine Michalopoulos, Special and Differential Treatment of Developing Countries in TRIPS (Geneva: Quaker United Nations Office, 2003).
49 Decision of the Council for TRIPS, Implementation of Article 66.2 of the TRIPS Agreement, 19 February 2003, WTO Doc IP/C/28.
50 See Paragraph 19, Ministerial Declaration, WTO Ministerial Conference, Fourth Session, Doha, 14 November 2001, Doc WT/MIN(01)/DEC/1 [hereafter Doha Ministerial Declaration].