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GOOD FAITH AND THE TRIPS AGREEMENT: PUTTING FLESH ON THE BONES OF THE TRIPS ‘OBJECTIVES’

Published online by Cambridge University Press:  24 April 2014

Alison Slade
Alison Slade*
Affiliation:
Brunel Law School, Brunel University, London, [email protected].
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Abstract

The WTO Panel decision in United States–Section 211 Omnibus Appropriations Act 1998 provides an interesting, and as yet under-appreciated, explanation of the function of one of the most politically debated articles of the TRIPS Agreement—Article 7. This provision has received limited recognition from the Dispute Settlement Body of the WTO. Consequently, the Panel's interpretation of Article 7 as an expression of the good faith principle is noteworthy, and is one that is not disavowed by the Appellate Body. Not only does the Panel acknowledge Article 7 as an effective source of law within the international intellectual property system, but in doing so it introduces into the TRIPS Agreement legal concepts that are not explicit within the text. This has implications for the function of this provision and also for the nature of the obligations arising under the Agreement for Member States. This article analyses the potential significance of this development by defining the scope of the good faith principle within the TRIPS Agreement. Particular reference will also be made to the role Article 7, as an expression of the good faith principle, may have in the forthcoming WTO dispute against Australia and its law on plain packaging for tobacco products.

Keywords

abus de droitArticle 7general principles of lawgood faith principlelegitimate expectationspacta sunt servandaTRIPS AgreementVienna Convention on the Law of TreatiesWorld Trade Organization
Type
Articles
Information
International & Comparative Law Quarterly , Volume 63 , Issue 2 , April 2014 , pp. 353 - 383
Copyright
Copyright © British Institute of International and Comparative Law 2014 

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References

1 adopted 15 April 1994, entered into force 1 January 1995 1869 UNTS 299.

2 Article 8, entitled ‘Principles’, states that:

  1. 1.

    1. Members may, in formulating or amending their laws and regulations, adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development, provided that such measures are consistent with the provisions of this Agreement.

  2. 2.

    2. Appropriate measures, provided that they are consistent with the provisions of this Agreement, may be needed to prevent the abuse of intellectual property rights by rights holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology.

The preamble, for example, ‘Recognis[es] the underlying public policy objectives of national systems for the protection of intellectual property, including developmental and technological objectives’.

3 Many WTO Member States, in particular developing countries, have sought to rely on Article 7 (and Article 8) to argue that the TRIPS Agreement should be interpreted and implemented in a manner that is more sensitive to the wider socio-economic and development goals of developing nations. Dinwoodie, GB and Dreyfuss, RC, A Neofederalist Vision of TRIPS: The Resilience of the International Intellectual Property Regime (OUP 2012) 109–11Google Scholar; Yu, PK, ‘The Objectives and Principles of the TRIPS Agreement’ (2009) 46 HousLR 979, 1022Google Scholar; Correa, CM, Trade Related Aspects of Intellectual Property Rights: A Commentary on the TRIPS Agreement (OUP 2007) 93Google Scholar.

4 Cotter, TF, ‘Market Fundamentalism and the TRIPS Agreement’ (2004) 22 CardozoArts&EntLJ 307, 327Google Scholar. Cotter argues that the vagueness of the language used should not necessarily undermine their legal application given that many legal concepts are somewhat vague, for example that of due process.

5 Total number of complaints proceeding to a Panel ruling is ten, with two of the complaints being on the same facts (thus only eight distinct factual situations have been ruled upon). Three have been appealed to the Appellate Body and decisions issued. For a more detailed analysis of the WTO TRIPS disputes see Lee, E, ‘Measuring TRIPS Compliance and Defiance: The WTO Compliance Scorecard’ (2011) 18 JIntellPropL 401Google Scholar; Pauwelyn, J, ‘The Dog That Barked But Didn't Bite: 15 Years of Intellectual Property Disputes at the WTO’ (2010) 1 JIntDispSettlement 389, 393–6Google Scholar. The number of Panel rulings is about to change. Both the Ukraine and Honduras have requested the establishment of a Panel to hear their complaints against the plain packing rules for tobacco products recently implemented in Australia. WTO, Australia: Certain Measures Concerning Trade Marks and other Plain Packaging Requirements Applicable to Tobacco Products and Packaging – Request for the Establishment of a Panel by Ukraine (17 August 2012) WT/DS434/11; Request for the Establishment of a Panel by Honduras (17 October 2012) WT/DS435/16.

6 WTO, Canada: Patent Protection of Pharmaceutical Products – Report of the Panel (17 March 2000) WT/DS114/R (Canada–Pharmaceuticals).

7 WTO, Canada: Term of Patent Protection – Report of the Appellate Body (18 September 2000) WT/DS170/AB/R (Canada–Patent Term) [101].

8 WTO, United States: Section 211 Omnibus Appropriations Act of 1998 – Report of the Panel (6 August 2001) WT/DS176/R (US–Section 211).

9 Kolb, R, ‘Principles As Sources of International Law (with Special Reference to Good Faith)’ (2006) NILR 1, 14–16Google Scholar.

10 ibid 16–17. The author equates the concept of good faith with legal ‘standards’ that operate to ‘bridge the gap’ between the facts of the case and the applicable norm, where the norm in question does not directly address the specifics of the case in hand. Whilst Kolb does not perceive this to be the most important role for good faith he does recognize that this role can lead to the creation of autonomous standards that act as a source of law. The suggestion being that good faith, as a general legal standard, can facilitate the creation of legally applicable equitable values.

11 Schwarzenberger describes good faith as one of the ‘seven fundamental principles’ of international law, Schwarzenberger, G and Brown, ED, A Manual of International Law (6th edn, Professional Books 1969) 35–6Google Scholar. The International Court of Justice has described the principle of good faith as ‘One of the basic principles governing the creation and performance of legal obligations, whatever their source.’ Nuclear Tests Case (Australia v France) [1974] ICJ Rep 253, 268. Panizzon, M, Good Faith in the Jurisprudence of the WTO (Schulthess 2006) 11–20Google Scholar.

12 WTO, United States: Import Prohibition of Certain Shrimp and Shrimp Products – Report of the Appellate Body (12 October 1998) WT/DS58/AB/R [158] (US–Shrimp).

13 Mitchell, AD, ‘Good Faith in WTO Dispute Settlement’ (2006) 7 Melbourne Journal of International Law 339, 345Google Scholar.

14 For an analysis of the Appellate Body's approach towards the good faith principle see Panizzon (n 11) ch 8.

15 US–Shrimp (n 12) [156]–[186].

16 ibid [158].

17 WTO, United States: Anti-Dumping Measures on Certain Hot-Rolled Steel Products from Japan – Report of the Appellate Body (24 July 2001) WT/DS184/AB/R [193].

18 ibid [101]. For an analysis of the reasoning of the WTO Appellate Body on the issue of good faith see Zeitler, HE, ‘‘‘Good Faith’’ in the WTO Jurisprudence: Necessary Balancing Element or an Open Door to Judicial Activism?’ (2005) 8 JIEL 721, 735–7Google Scholar; Panizzon (n 11) 51–60.

19 The TRIPS Agreement makes explicit reference to the requirement of ‘good faith’ at arts 24.4, 24.5, 48.2 and 58(c). In addition, several provisions seek to prevent the ‘abuse of intellectual property rights’ and the abuse of intellectual property enforcement procedures, see arts 8.2, 40.2, 41.1, 48.1, 50.3 and 53.1.

20 Mitchell (n 13) 353.

21 Panizzon (n 11) 61.

22 For a brief discussion on the relevance of this decision see Ruse-Khan, HG, ‘The (Non) Use of Treaty Object and Purpose in Intellectual Property Disputes in the WTO’ in Sustainable Development Principles in the Decisions of International Courts and Tribunals 1992–2012 (CUP 2012) 20–5Google Scholar. <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1939859> accessed 14 December 2013.

23 Paris Convention for the Protection of Industrial Property (adopted 20 March 1883, last revised 14 July 1967, amended 28 September 1979) 828 UNTS 305.

24 Havana Club Holding, S.A. v Galleon, S.A. 62 F Supp 2d 1085 (NY 1999); Havana Club Holding, S.A. v Galleon, S.A. 203 F 3d 116 (2nd Cir 2000).

25 Violation was claimed of TRIPS arts 2.1, 3.1, 4, 15.1, 16.1 and 42 in conjunction with violations under the Paris Convention, arts 2(1), 6bis(1), 6quinquies A(1) and 8. US–Section 211 (n 8) [3.1]–[3.4].

26 US–s211 (n 8) [8.57] (emphasis added). The panel quoted from the Appellate Body Report, US–Shrimp (n 12) [158].

27 In analysing the consistency of section 211 with art 15.1 of the TRIPS Agreement, the Panel accepts that art 15.2 allows Member States to deny registration on ‘other grounds’ including grounds relating to conditions of ownership. Beyond recognizing that safeguards exist within the TRIPS Agreement to prevent potential abuse, the Panel makes no further attempt to scrutinize United States' law for compliance with the principle of good faith as enshrined in art 7. US–Section 211 (n 8) [8.55]–[8.60].

28 WTO, United States: Section 211 Omnibus Appropriations Act of 1998 – Report of the Appellate Body (2 January 2002) WT/DS176/AB/R. In relation to art 15.1 of the TRIPS Agreement, the Appellate Body (AB) upheld the Panel's decision, confirming that WTO Members have the right to determine their own conditions of filing and registration, including those relating to ownership and the registration of confiscated marks. However, the AB overrules the Panel on several of its key findings, holding that the TRIPS Agreement obliges Member States to provide adequate protection for trade names; and that the US legislation violated the national treatment and most-favoured-nation principles as it applied only to Cuban nationals and not to nationals from the US or any other Member State.

29 Nuclear Tests Case (n 11) [46].

30 D'Amato, A, ‘Good Faith’ in Bernhardt, R (ed), Encyclopaedia of Public International Law vol II (Elsevier 1995) 600Google Scholar.

31 Bagchi, A, ‘Compulsory Licensing and the Duty of Good Faith in TRIPS’ (2002–2003) 55 StanLRev 1529, 1542Google Scholar.

32 US–Section 211 (n 8) (emphasis added).

33 As noted by O'Connor, ‘The principle of good faith in international law is a fundamental principle from which the rule pacta sunt servanda and other legal rules distinctively and directly related to honesty, fairness and reasonableness are derived.’ O'Connor, J, Good Faith in International Law (Dartmouth 1991) 124Google Scholar.

34 US–Section 211 (n 8) [8.57].

35 ILC, ‘Yearbook of the International Law Commission 1966, Volume II’ (1966) UN Doc A/CN.4/SER.A/1966/Add.1, 221 [12].

36 Sinclair, I, The Vienna Convention on the Law of Treaties (2nd edn, Manchester University Press 1984) 119Google Scholar. Also, as noted by the International Law Commission, ‘the interpretation of treaties in good faith and according to law is essential if the pacta sunt servanda rule is to have any real meaning’. ILC (n 35) 119.

37 Whether or not in an attempt to introduce important legal principles into the TRIPS Agreement without subjecting the WTO Dispute Settlement Body to accusations of judicial activism. See text to (n 98).

38 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) art 26.

39 Villiger, ME, Commentary on the 1969 Vienna Convention on the Law of Treaties (Martinus Nijhoff 2009) 365CrossRefGoogle Scholar.

40 The Gabčίkovo-Nagymaros Project (Hungary/Slovakia) (Judgement) [1997] ICJ Rep 7, 78–9.

41 ILC (n 35) 211[4]; Zeitler (n 18) 730.

42 The WTO Appellate Body has acknowledged that the principle of pacta sunt servanda forms an essential part of WTO jurisprudence. WTO, United States: Continued Dumping and Subsidy Offset Act of 2000 – Report of the Appellate Body (16 January 2003) WT/DS217/AB/R. The principle also finds expression in Article XVI.4 of the Agreement Establishing the World Trade Organization.

43 adopted 15 April 1994, entered into force 1 January 1995 1869 UNTS 401.

44 ibid, art 3.2.

45 WTO, United States: Standards for Reformulated and Conventional Gasoline – Report of the Appellate Body (29 April 1996) WT/DS2/AB/R, 15–16.

In fact, the Appellate Body has been willing to overturn Panel decisions for misapplying the interpretative rules of the Vienna Convention: WTO, India: Patent Protection for Pharmaceutical and Agricultural Chemical Products – Report of the Appellate Body (19 December 1997) WT/DS50/AB/R [43]–[48].

46 WTO, ‘Declaration on the TRIPS Agreement and Public Health – Adopted on 14 November 2001’ (20 November 2001) WT/MIN(01)/DEC/2 [5(a)]. See also the Doha Ministerial Declaration which requires the Council for TRIPS, in pursuing its work programme, to be guided by arts 7 and 8. WTO, ‘Ministerial Declaration – Adopted on 14 November 2001’ (20 November 2001) WT/MIN(01)/DEC/1 [19].

47 ILC (n 35) 219–20.

48 WTO, European Communities: Customs Classification of Frozen Boneless Chicken Cuts – Report of the Appellate Body (12 September 2005) WT/DS269/AB/R & WT/DS286/AB/R [176].

49 WTO, United States: Continued Existence and Application of Zeroing Methodology – Report of the Appellate Body (4 February 2009) WT/DS350/AB/R, [268] and [273]. This is seen by many commentators as a move away from the ‘text first’ approach that the WTO has historically favoured. Mercurio, B and Tyagi, M, ‘Treaty Interpretation in the WTO Dispute Settlement: The Outstanding Question of the Legality of Local Working Requirements’ (2010) 19 MinnesotaJIntlL 275, 304Google Scholar.

50 Gardiner, RK, Treaty Interpretation (OUP 2010) 152CrossRefGoogle Scholar.

51 WTO, United States: Measures Affecting the Cross-Border Supply of Gambling and Betting Services – Report of the Panel (10 November 2004) WT/DS285/R, [6.50].

52 US–Offset Act (n 42) [296].

53 Villiger (n 39) 425.

54 Sinclair (n 36) 120; Villiger (n 39) 426; Gardiner (n 50) 148.

55 ILC (n 35) 219 [6]. For a brief discussion on the negotiating history in relation to the principle of effectiveness see Gardiner (n 50) 149–150.

56 WTO, Japan: Taxes on Alcoholic Beverages – Report of the Appellate Body (4 October 1996) WT/DS8, 9 & 10/AB/R, 10–11 (citations omitted).

57 In United States–Section 211 the Appellate Body utilized the principle of effectiveness to support an interpretation of the TRIPS Agreement that would not deprive a provision of the Paris Convention of meaning and effect. US–Section 211 (n 28) [338].

58 ILC, ‘Yearbook of the International Law Commission 1964, Volume I’ (1964) UN Doc A/CN.4/SER.A/1964, 288–91.

59 The ILC stated that ‘Properly limited and applied the maxim [ut res magis valeat quam pereat] does not call for an ‘extensive’ or ‘liberal’ interpretation in the sense of an interpretation going beyond what is expressed or necessarily to be implied in the terms of the treaty. ILC (n 35) 219 [6]; Interpretative practice of the WTO is governed by the DSU, which states that ‘Recommendations and rulings of the DSB cannot add to or diminish the rights and obligations provided in the covered agreements.’ DSU, art 3.2 (n 43).

60 Gardiner (n 50) 152.

61 Shanker, D, ‘The Vienna Convention on the Law of Treaties, the Dispute Settlement System of the WTO and the Doha Declaration on the TRIPS Agreement’ (2002) 36 JWT 721Google Scholar; Howse, R, ‘The Canadian Generic Medicines Panel: A Dangerous Precedent in Dangerous Times’ (2005) 3 JWIP 493Google Scholar; Frankel, S, ‘WTO Application of ‘‘the Customary Rules of Interpretation of Public International Law’’ to Intellectual Property’ (2005) 46 VaJIntlL 365Google Scholar; Yamane, H, Interpreting TRIPS: Globalisation of Intellectual Property, Rights and Access to Medicine (Hart Publishing 2011)Google Scholar.

62 Section 55.2(1) of the Patent Act.

63 Section 55.2(2) of the Patent Act in conjunction with the ‘Manufacturing and Storage of Patented Medicines Regulation’.

64 WTO, Canada: Patent Protection of Pharmaceutical Products – Request for the Establishment of a Panel by the European Communities (12 November 1998) WT/DS114/5.

65 Canada–Pharmaceuticals (n 6) [7.20].

66 Canada–Pharmaceuticals (n 6) [4.13]–[4.20].

67 Okediji, RL, ‘Public Welfare and the Role of the WTO: Reconsidering the TRIPS Agreement’ (2003) 17 EmoryIntlLRev. 819, 914–15Google Scholar; Barbosa, D, Chon, M and Moncayo von Hase, A, ‘Slouching Towards Development in International Intellectual Property’ (2007) Michigan State Law Review 71, 108–9Google Scholar; Ruse-Khan (n 22) 27–32.

68 Howse (n 61) 496.

69 ibid.

70 Canada–Pharmaceuticals (n 6) [7.29]. Frankel (n 61) 398; Howse (n 61) 496. Although consulting preparatory documentation is authorized under the Vienna Convention rules it is only to occur following the application of the rule in art 31 and then only to confirm the interpretation or to add further guidance (art 32 Vienna Convention).

71 Frankel (n 61) 397.

72 Correa (n 3) 93.

73 Ruse-Khan (n 22) 21–4.

74 This limited role for the Ministerial declaration is not accepted by Dinwoodie and Dreyfuss, who note that ‘While the Declaration was made in the context of a health crisis and precipitated an amendment to the Agreement, the provision on Article 7 was (like the rest of the Declaration) not confined to that context and was viewed as explaining-not modifying-the Agreement’ Dinwoodie and Dreyfuss (n 3)110.

75 In EC–Trade Marks and Geographical Indications for Agricultural Products and Foodstuffs the Panel made a detailed analysis of art 17, as providing for exceptions to trade mark rights, and goes some way towards analysing them in terms of a balance of competing interests. However, the Panel did not utilize arts 7 and/or 8 in this process, perhaps in light of the fact that the national measures in question did not relate to a public health matter. WTO, European Communities: Protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuffs – Report of the Panel (15 March 2005) WT/DS174 and 290/R (EC–GI) [7.644]–[7.686]. For a discussion on the interpretative approach of the Panel in this case see Dinwoodie and Dreyfuss (n 3) 82.

76 WTO, Australia: Certain Measures Concerning Trade Marks and other Plain Packaging Requirements Applicable to Tobacco Products and Packaging – Request for the Establishment of a Panel by Ukraine (17 August 2012) WT/DS434/11; Request for the Establishment of a Panel by Honduras (17 October 2012) WT/DS435/16; Request for Consultations by the Dominican Republic (18 July 2012) WT/DS441/1; Request for Consultations by Cuba (3 May 2013) WT/DS458/1; Request for Consultations by Indonesia (20 September 2013) WT/DS467/1 (current status of disputes as of 14 December 2013).

77 Tobacco Plain Packaging Act 2011. Section 20(1) states that ‘no trade mark may appear anywhere on the retail packaging of tobacco products, other than [the brand, business or company name (display of brand, business or company name regulated by the Act)]’.

78 This is argued to be contrary to arts 15.1, 15.4, 16.1, 16.3 and 20 of the TRIPS Agreement.

79 Section 3 of Australia's Tobacco Plain Packaging Act, expressly states that the legislation's overarching objective is to improve public health and thereby give effect to international obligations arising under the Convention on Tobacco Control.

80 Correa (n 3) 108.

81 T Turia (Associate Minister for Health), ‘Government Moves Forward with Plain Packaging of Tobacco Products’ (19 February 2013) <http://www.beehive.govt.nz/release/government-moves-forward-plain-packaging-tobacco-products> accessed 14 December 2013.

82 D Campbell and P Wintour, ‘Cigarettes Could Get Plain Packaging by 2015 after Government U-Turn’ The Guardian (28 November 2013) <http://www.theguardian.com/society/2013/nov/27/review-plain-packaging-cigarettes-2015> accessed 14 December 2013.

83 C Davenport, ‘European Parliament Votes to Weaken EU's Anti-Smoking Plans’ Reuters (8 October 2013) <http://uk.reuters.com/article/2013/10/08/uk-eu-tobacco-idUKBRE9970FG20131008> accessed 14 December 2013.

84 Good faith is described as one of the broadest concepts of international law. Zeitler (n 18) 721–2.

85 For example, Kolb identifies only three main aspects of the principle of good faith within international law generally. Yet Lennard identifies nine within the WTO jurisprudence itself, beyond those emanating from the interpretative obligation in art 31.1 of the Vienna Convention. Kolb (n 9) 17; Lennard, M, ‘Navigating by the Stars: Interpreting the WTO Agreement’ (2002) 5 JIEL 17, 55–76Google Scholar.

86 O'Connor (n 33) 124; Cottier, T and Schefer, KN, ‘Good Faith and the Protection of Legitimate Expectations in the WTO’ in Bronckers, M and Quick, R (eds), New Directions in International Economic Law: Essays in Honour of John H Jackson (Kluwer Law International 2000) 50Google Scholar.

87 US–Shrimp (n 12) [158]; US–Section 211 (n 8) [8.57]; B Cheng, General Principles of Law As Applied by International Courts and Tribunals (Grotius 1987) 121.

88 Cottier and Schefer (n 86) 51.

89 Cheng (n 87) 121–36.

90 Cottier and Schefer (n 86) 65.

91 US–Shrimp (n 12) [158], quoting Cheng (n 87) 125.

92 ibid [156].

93 ibid [158].

94 ibid. Mitchell (n 13) 370.

95 Cottier and Schefer (n 86) 65.

96 ibid.

97 Zeitler critiques the DSB's references to broad concepts, such as good faith, that leave Member States unclear and concerned about the implications. Zeitler (n 18) 755–6.

98 Cottier and Schefer (n 86) 52. As noted by Barbosa et al, ‘principles [unlike rules] are not applied in the abstract, but rather to the facts in a specific case, upon chosen value grounds’. Barbosa, Chon and Moncayo von Hase (n 67) 108.

99 US–Shrimp (n 12) [156].

100 US–Section 211 (n 8) [8.57].

101 Art 8 requires that any measures taken in pursuit of the objectives stated in art 8 must be consistent with the rest of the Agreement.

102 WTO, EC: Anti-Dumping Duties on Imports of Cotton-Type Bed Linen from India – Recourse to Article 21.5 of the DSU by India – Report of the Panel (29 November 2002) WT/DS141/RW [6.43]. The Panel, in this case, expressed concern about the possibility of introducing abusive litigation practices if they allowed art 21.5 of the DSU to be utilized to raise claims that had not been heard, or were dismissed, in the original proceedings.

103 Lowe, Vaughan, ‘Overlapping Jurisdiction in International Tribunals’ (1999) 20 AustYBIL 191, 202Google Scholar. As noted by Joost Pauwelyn, the doctrine of abuse of process is recognized, to some extent, in art 3.7 of the DSU which states that, ‘Before bringing a case, a Member shall exercise its judgement as to whether action under these procedures would be fruitful.’ However, the argument for abuse of process being made here incorporates yet extends beyond the subjective assessment of the fruitful nature of the action. Pauwelyn, J, Conflict of Norms in Public International Law: How WTO Law Relates to Other Rules of International Law (CUP 2003) 116Google Scholar.

104 UNCTAD-ICTSD, Resource Book on TRIPS and Development (CUP 2005) 126.

105 See text to (n 79–82).

106 Moncayo von Hase, A, ‘The Application and Interpretation of the Agreement on Trade-Related Aspects of Intellectual Property Rights’ in Correa, CM and Yusuf, AA, Intellectual Property and International Trade: The TRIPS Agreement (Kluwer Law International 2008) 118Google Scholar.

107 For example, Alemanno, A and Bonadio, E, ‘Do You Mind My Smoking? Plain Packaging of Cigarettes under the TRIPS Agreement’ (2011) 10 John Marshall Review of Intellectual Property Law 450Google Scholar; Daniel Gervais, ‘Analysis of the Compatibility of Certain Tobacco Product Packaging Rules with the TRIPS Agreement and the Paris Convention’ (2010) (Report prepared for Japan Tobacco International) <http://www.jti.com/how-we-do-business/key-regulatory-submissions/> accessed 15 December 2013; Lalive, ‘Why Plain Packaging is in violation of WTO Members’ International Obligations under TRIPS and the Paris Convention’ (2009) (Report prepared for Philip Morris International Management SA).

108 For example, Davison, M, ‘The Legitimacy of Plain Packaging under International Intellectual Property Law: Why There Is No Right to Use a Trademark under Either the Paris Convention or the TRIPS Agreement’ in Mitchell, A, Voon, T and Liberman, J (eds), Public Health and Plain Packaging of Cigarettes: Legal Issues (Edward Elgar 2012)Google Scholar.

109 It must be stressed that each side of the argument is infinitely more complex and nuanced than that presented here. For a detailed analysis of both sides of the debate see S Frankel and D Gervais, ‘Plain Packaging and the Interpretation of the TRIPS Agreement’ (2013) VandJTransnatlL. Forthcoming. <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2234580> accessed 15 December 2013.

110 Yu (n 3) 1025–39.

111 Qureshi, AH, Interpreting WTO Agreements: Problems and Perspectives (CUP 2006) 8Google Scholar.

112 Panizzon (n 11) 227–31.

113 WTO, India: Patent Protection of Pharmaceutical and Agricultural Chemical Products (5 September 1997) WT/DS50/R [7.18] (India–Patent Protection).

114 EC–Frozen Chicken (n 48) [176].

115 Cottier and Schefer (n 86) 53.

116 India–Patent Protection (n 113) [7.21]–[7.22].

117 ibid [7.53].

118 ibid [7.41].

119 For a critique of the Panel's decision see Werner, J, ‘The TRIPS Agreement under the Scrutiny of the WTO Dispute Settlement System: The Case of Patent Protection for Pharmaceutical and Agricultural Chemical Products in India’ (1998) 1 JWorldIntellProp. 309Google Scholar.

120 WTO, India: Patent Protection of Pharmaceutical and Agricultural Chemical Products (19 December 1997) WT/DS50/AB/R, [36]–[42] (India–Patent Protection).

121 Under art XXIII(b) of the GATT 1994 non-violation complaints can be initiated where there is no breach of the provisions of the covered agreement, but where the negotiated balance is upset by another Member's actions.

122 India–Patent Protection (n 120) [42]. The TRIPS Agreement, art 64.2 prohibits the application of non-violation complaints to the TRIPS Agreement for five years from the date of entry of the Agreement. Despite extensive debate on the issue within the Council for TRIPS, non-violation complaints are still not a valid form of action for the TRIPS Agreement.

123 ibid [45].

124 ibid.

125 ibid [46]–[47].

126 US–Offset Act (n 42) [296].

127 Frankel, S, ‘Challenging TRIPS-Plus Agreements: The Potential Utility of Non-Violation Disputes’ (2009) 12 JIEL 1023, 1045Google Scholar.

128 Evans, GE, ‘A Preliminary Excursion into TRIPS and Non-Violation Complaints’ (2000) 3 JWIP 867, 882–6Google Scholar; Frankel (n 127) 1046.

129 ibid, 881.

130 US–Section 211 (n 8) [8.57]. The Panel included arts 1.1, 3 and 4 as additional safeguards against the potential abuse by arbitrary national legislation.

131 As noted by Cottier and Schefer in response to the Appellate Body's decision in US–Shrimp, by linking the chapeau in Article XX of the GATT to the principle of good faith and abuse of rights the Appellate Body seems to apply the doctrine ‘as a matter of substantive law of the chapeau of Article XX GATT, expounding the essence and specific function of this elusive provision’. Cottier and Schefer (n 86) 65.

132 US–Shrimp (n 12) [156]; Panizzon (n 11) 92 and 95.

133 Panizzon (n 11). 92.

134 US–Shrimp (n 12) [159].

135 US–Section 211 (n 28) [259]. The Appellate Body has held that good faith on the part of the Members States is to be presumed, European Communities: Trade Description of Sardines – Report of the Appellate Body (26 September 2002) WT/DS231/AB/R [278].

136 Panizzon (n 11) 87.