Human rights, development, and the WTO: The cases of intellectual property and competition policy

Journal of International Economic Law

Volumn 9, Issue 3, 2006, Pages 707-747

  Anderson, Robert D ^a   Wager, Hannu ^a  

^a WTO Secretariat   (Switzerland)

Author keywords

[No Author keywords available]

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EID: 33749011983     PISSN: 13693034     EISSN: 14643758     Source Type: Journal    
DOI: 10.1093/jiel/jgl022     Document Type: Review

References (182)

1. Ricardo Lagos, President of Chile, as quoted in Pascal Lamy, Remarks at a seminar on 'Humanizing Globalization', Santiago de Chile (30 January 2006) http://www.wto.org/english/news_e/sppl_e/sppl16_e.htm.
2. See, for example, J. Oloka-Onyango and Deepika Udagama, 'The Realization of Economic, Social and Cultural Rights: Globalization and Its Impact on the Full Enjoyment of Human Rights', Preliminary Report Prepared for the UN Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, United Nations, Economic and Social Council, 2000, in which the WTO is described as a 'veritable nightmare' for those concerned with the protection of human rights, and particularly for the rights of developing countries and women. This report was followed by further reports which reached more nuanced and generally more favourable conclusions.
3. See United Nations, Economic, and Social Council, Report of the High Commissioner, Economic, Social and Cultural Rights: The Impact of the Agreement on Trade-Related Aspects of Intellectual Property Rights on Human Rights, UN document E/CN.4/Sub.2/2001/13, 27 June 2001
4. and United Nations, Economic, and Social Council, Report of the High Commissioner, Economic, Social, and Cultural Rights: Liberalization of Trade in Services and Human Rights: Executive Summary, UN document E/CN.4/Sub.2/2002/9 (25 June 2002).
5. Nevertheless, the perception of the WTO as a threat to the fulfilment of human rights has persisted (see, e.g. Caroline Dommen, 'Raising Human Rights Concerns in the World Trade Organization: Actors, Processes and Possible Strategies', 24(1), Human Rights Quarterly (2002) 1-50) and merits further reflection.
6. In this article, the term 'human rights' refers to both civil and political rights, and to economic, social, and cultural rights. See related discussion, below.
7. The second preambular paragraph to the WTO Agreement refers specifically to the 'need for positive efforts designed to ensure that developing countries, and especially the least developed among them, secure a share in the growth in international trade commensurate with the needs of their economic development'. GATT Secretariat, The Results of the Uruguay Round of Multilateral Trade Negotiations: the Legal Texts, at 4.
8. Ibid at 365.
9. Of course, the WTO does not address questions concerning the internal distribution of resources within societies and many other aspects of social and economic policies that bear on the realization of human rights.
10. See, for relevant discussion, Gabrielle Marceau, 'WTO Dispute Settlement and Human Rights', 13(4), European Journal of International Law, (2002) 753-814;
11. Gabrielle Marceau, 'The WTO Dispute Settlement and Human Rights', in Frederick M. Abbott, Christine Breining-Kaufmann, and Thomas Cottier (eds), International Trade and Human Rights: Foundations and Conceptual Issues, World Trade Forum, Vol. 5 (Ann Arbor: University of Michigan Press, 2005), chapter 10;
12. and Joost Pauwelyn, 'Human Rights in WTO Dispute Settlement', in Thomas Cottier, Joost Pauwelyn, and Elisabeth Burgi Bonanomi (eds), Human Rights and International Trade (Oxford: Oxford University Press, 2005) at 205-31.
13. United Nations, Universal Declaration of Human Rights, 1948, http://www.unhchr.ch/udhr/lang/ eng.htm. The UDHR refers, inter alia, to the rights to life, liberty, and security of persons; equality before the law and equal protection from discrimination; access to competent national tribunals for the protection of [a person's] rights; protection from arbitrary arrest and detention; ownership of property and protection against arbitrary deprivation of property; freedom of thought, conscience, religion, and of expression; just and favourable conditions of work and remuneration; an adequate standard of living; education; and other rights. The Declaration also states that 'Everyone is entitled to a social and international order in which the rights and freedoms set forth in [the Declaration] can be fully realized'. From our point of view, the critical challenge is to go beyond merely espousing these rights and goals to identify the conditions under which they are most likely to be achieved.
14. See Ernst-Ulrich Petersmann, 'Taking Human Dignity, Poverty and Empowerment of Individuals More seriously: Rejoinder to Alston', 13 European Journal of International Law (2002) 815-844,
15. Ernst-Ulrich Petersmann, 'Human Rights and the Law of the World Trade Organization', 37(2) Journal of World Trade (2003) 241-281,
16. and Ernst-Ulrich Petersmann, 'Theories of Justice, Human Rights and the Constitution of International Markets', 37(2) Loyola University of Los Angeles Law Review (Fall 2003) 407-460.
17. Adam Smith, The Wealth of Nations (New York: Penguin Classics, 1986, first published 1776).
18. Thomas Paine, The Rights of Man (originally published 1791-92),
19. reprinted in Edmund Burke, Reflections on the Revolution in France
20. and Thomas Paine, The Rights of Man (New York: Anchor Press, 1973).
21. Immanuel Kant, 'To Perpetual Peace: A Philosophical Sketch', reprinted in H. S. Reiss (ed), Kant: Political Writings (Cambridge: Cambridge University Press, 1991; first published 1795).
22. See the lucid discussion in Vaclav Klaus, 'Freedom and Its Enemies: Problems of Re-Establishing Freedom and Democracy in the European Context', Institute of Economic Affairs, No. 2, at 46-48 (June 2005).
23. 'What people can positively achieve is influenced by economic opportunities, political liberties, social powers, and the enabling conditions of good health, basic education, and the encouragement and cultivation of initiatives. The institutional arrangements for these opportunities are also influenced by the exercise of people's freedoms, through the liberty to participate in social choice and in the making of public decisions that impel the progress of these opportunities'. Amartya Sen, Development as Freedom (New York: Knopf, 1999) at 4-5.
24. See Petersmann, 'Taking Human Dignity, Poverty and Empowerment of Individuals More seriously: Rejoinder to Alston', above n 9,
25. Petersmann, 'Human Rights and the Law of the World Trade Organization', above n 9,
26. and Petersmann, 'Theories of Justice, Human Rights and the Constitution of International Markets', above n 9.
27. See, for example Paulina Beato, and Jean-Jacques Laffont, eds., 'Competition Policy in Regulated Industries: Approaches for Emerging Economies', Inter-American Development Bank (2003);
28. William Easterly, The White Man's Burden: Why the West's Efforts to Aid the Rest have Done So Much Ill and So Little Good (New York: Penguin Press);
29. Jean-Jacques Laffont, Regulation and Development (Cambridge: Cambridge University Press, 2005);
30. Jeffrey Sachs, The End of Poverty: Economic Possibilities for our Time (New York: Penguin, 2005);
31. and World Bank 'Making Markets Work Better for Poor People', in World Development Report: 2004 (New York: World Bank), chapter 4. To be sure, Sachs' book is principally concerned not with market governance themes but with the prospect of 'ending poverty' through a 'global compact' involving an augmentation of international aid, public health, and related measures. He nonetheless acknowledges (at p 59-60) that respect for property rights, mechanisms to ensure the enforceability of contracts, and other aspects of governance are crucial to sustained growth and development.
32. Milton Friedman, Capitalism and Freedom (Chicago: University of Chicago Press, 1962);
33. Milton Friedman and Rose Friedman, Free to Choose (New York: Harcourt Brace Jovanich, New York, 1979);
34. and Petersmann, 'Theories of Justice, Human Rights and the Constitution of International Markets', above n 9.
35. Sen, above n 14, at 6.
36. Smith, above n 10.
37. See David Hume, A Treatise of Human Nature (1739);
38. Lord Kames (Henry Home), Historical Law Tracts (1758);
39. and Francis Hutcheson, Essay on the Nature and Conduct of the Passions and Affections, with Illustrations of the Moral Sense (1728).
40. An intriguing discussion of the Scottish Enlightenment, encompassing both the lives and thought of its main figures and their relation to the evolution of political and constitutional structures in the US, the UK, and elsewhere, is provided in Arthur Herman, How the Scots Invented the Modern World (New York: Three Rivers Press, 2002).
41. Gary Wills, Inventing America: Jefferson's Declaration of Independence (New York: Mariner Books, 2002), pp. 248-55, discusses Jefferson's reliance on the works of Hutcheson, Hume, Smith, and Jean-Jacques Burlamaqui, a Swiss contemporary and disciple of Hutcheson.
42. See also the related passages from the writings of Thomas Paine and Adam Smith quoted in Part III(A), below.
43. Kant, above n 12.
44. Benjamin Friedman, The Moral Consequences of Economic Growth (New York: Knopf, 2005) at 436.
45. Smith, above n 10, especially Book V.
46. Public choice theorists make the (in our view, valid) point that imperfect markets should not be unfairly contrasted with an idealized or 'romanticized' vision of government intervention. Governments, too, have their failures that need to be factored into the analysis. See James Buchanan, 'Public Choice - Politics Without Romance', 19(3) Policy (2003) 16,
47. also quoted in Klaus, above n 13. Nonetheless, from the standpoint of modern economics, the existence of demonstrated market failures at least serves as a necessary (if not a sufficient) ground for intervention.
48. Friedman, above n 17,
49. and Hernando De Soto, The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else (New York: Basic Books, 2003);
50. see also Sachs, above n 16, at 59-60.
51. See, for related discussion, Laffont, above n 16.
52. See De Soto, above n 27; Sachs, above n 16; and World Bank, above n 16.
53. De Soto, above n 27 and Easterly, above n 16;
54. see also David S. Landes, The Wealth and Poverty of Nations: Why Some Are So Rich and Some So Poor (New York: W.W. Norton and Co., 1999).
55. Sen, above n 14.
56. See Martin Wolf, Why Globalization Works (New Haven, CT: Yale University Press, 2004), for convincing development of this theme. Globalization is defined (by Wolf and, following him, by us) as a progressive process of economic integration chiefly via the operation of markets, as natural and manmade barriers to international exchange fall. Wolf's assessment rests on both traditional economic thinking regarding the gains from trade and the modern emphasis on cross-cultural learning effects and inter-governmental competition and accountability.
57. See Wolf, ibid and Pascal Lamy, above n 1.
58. See, for valuable commentary, Inge Kaul, Isabelle Grunberg, and Marc Stern, eds., Global Public Goods: International Co-operation in the 21st Century (Oxford: Oxford University Press, 1999).
59. See Julian Clarke and Simon J. Evenett, 'A Multilateral Framework for Competition Policy?' (Bern, Switzerland: State Secretariat of Economic Affairs)
60. and Simon Evenett, 'The Singapore Issues and the World Trading System: the Road to Cancun and Beyond' (Bern: State Secretariat for Economic Affairs, 2003);
61. Richard A. Epstein and Michael S. Greve, 'Competition Laws in Conflict: Antitrust Jurisdiction in the Global Economy' (American Enterprise Institute, 2004);
62. and Robert D. Anderson and Frédéric Jenny, 'Competition Policy, Economic Development and the Possible Role of a Multilateral Framework on Competition Policy: Insights from the WTO Working Group on Trade and Competition Policy', in Erlinda Medalla (ed), Competition Policy in East Asia (London and New York: Routledge/Curzon, 2005), chapter 4.
63. Paul Krugman and Maurice Obstfeld, International Economics: Theory and Policy, 7th edn (Reading, MA: Addison Wesley Longman, 2005).
64. GATT Secretariat, above n 4.
65. A useful review of relevant literature is provided in Alan O. Sykes, 'International Trade and Human Rights: An Economic Perspective', in Abbott et al., above n 7, chapter 4.
66. Sykes, International Trade and Human Rights: An Economic Perspective', in ibid.
67. Luis Rivera-Batiz and Paul M. Romer, 'Economic Integration and Endogenous Growth', CVI Quarterly Journal of Economics (1991) 531-555
68. and Elhanan Helpman, The Mystery of Economic Growth (Belknap, MA: Cambridge, 2004).
69. Krugman and Obstfeld, above n 36. Another arguable benefit from trade liberalization and globalization is the enhanced transparency and accountability of governments that can result from international competition in political markets.
70. Sachs, above n 16, chapter 16; see also Easterly, above n 16.
71. See, for useful discussion, Chiedu Osakwe, 'Poverty Reduction and Development: the Interaction of Trade, Macroeconomic and Regulatory Policies', Tenth Joseph Mubiru Memorial Lecture, organized by the Bank of Uganda (14 December 2001).
72. See Nancy Birdsall and Robert Z. Lawrence, 'Deep Integration and Trade Agreements: Good for Developing Countries?', in Kaul et al., above n 34;
73. see also Mancur Olson, The Logic of Collective Action : Public Goods and the Theory of Groups, revised edition (Cambridge, MA: Harvard University Press, 1971) and Wolf, above n 32.
74. Sachs, above n 16, chapter 9.
75. Sachs, above n 16, chapter 8.
76. Ernst-Ulrich Petersmann, 'Theories of Justice, Human Rights and the Constitution of International Markets', above n 9.
77. In this context, 'cosmopolitan' refers to a rule of equal and just treatment by participating regimes of their nationals and non-nationals. See, for useful discussion, Kwame Anthony Appiah, Cosmopolitanism: Ethics in a World of Strangers (New York: W. W. Norton, 2006). The idea of cosmopolitanism also has important application in the field of competition policy.
78. See Eleanor M. Fox, 'Toward World Antitrust and Market Access', 91(1) American Journal of International Law (1997), 1-25.
79. See, for related discussion, Rudolph Adlung, 'GATS and Democratic Legitimacy', Aussenwirtschaft, 59, Jahrgang, Heft II, (Zurich, 2004).
80. As Petersmann acknowledges, they of course do not address directly many other important aspects of human rights.
81. Ernst-Ulrich Petersmann, 'Theories of Justice, Human Rights and the Constitution of International Markets', above n 9;
82. see also Ernst-Ulrich Petersmann and James Harrison, Reforming the World Trading System: Legitimacy, Efficiency and Democratic Governance (Oxford: Oxford University Press, 2005).
83. See Ernst-Ulrich Petersmann, 'Legal, Economic and Political Objectives of National and International Competition Policies: Constitutional Functions of WTO "Linking Principles" for Trade and Competition', 34 New England Law Review (1999) 145-162.
84. See Robert Howse, 'Human Rights in the WTO: Whose Rights, What Humanity? Comment on Petersmann', 13 European Journal of International Law (2002) 651-659.
85. Wolf, above n 32; Kaul et al., above n 34.
86. Occasionally, it is erroneously implied that the problem of agricultural subsidies that distort developing country markets is created by the WTO. In fact, it is just the opposite - subsidies are an issue generated at the national level which various parties are seeking collectively to redress - looking to the WTO as a necessary forum in which to do this.
87. The significance of this point cannot be overstated. In popular discussions, one sometimes gets the impression that the WTO is empowered to impose changes in national economic or social policies simply on the basis of its own views of what is desirable, and on its own motion. In fact, WTO dispute settlement proceedings (i.e. proceedings potentially leading to mandatory remedial measures) can be initiated only in response to complaints by a Member government or governments citing a cause-of-action that is recognized in WTO law.
88. United Nations, Millennium Development Goals, 2000, http://www.un.org/ millenniumgoals/.
89. Wolf, above n 32; see also Easterly, above n 16.
90. IPRs are the subject of one of the three main WTO agreements, namely the TRIPS Agreement. Competition policy is also the subject of various existing legal provisions in the WTO Agreements, although (unlike intellectual property) it is not the subject of a comprehensive, self-standing agreement (see World Trade Organization, 'Special study on trade and competition policy', in Annual Report of the World Trade Organization for 1997 (Geneva: WTO, 1997), chapter IV. The need or otherwise for such an agreement was one of various issues considered in an extensive exploratory work programme on competition policy in the WTO from 1998 through 2003; this work is currently inactive as a result of decisions taken in the 2004 'July Package' of the WTO General Council
91. (see WTO document WT/L/579 of 2 August 2004 and Anderson and Jenny, above n 35).
92. This section of the article draws on some portions of a WTO Secretariat paper on Protection of Intellectual Property under the TRIPS Agreement, prepared for a 'Day of general discussion on the topic "The right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author (Article 15.1(c)) of the Covenant" ', organized by the UN Committee on Economic, Social and Cultural Rights on 27 November 2000. UN Document E/C.12/2000/18.
93. Although the term 'author' is, in the IP context, generally used to refer to authors of literary and artistic works (i.e. copyright), this term is used in a broader sense in the UDHR and the ICESCR to cover authors of 'any scientific, literary or artistic production', including both literary and artistic works and innovations (cf. para 9 of the General Comment). In this article, the term 'author' is used in this broader sense.
94. United Nations, International Covenant on Economic, Social and Cultural Rights, 1966, http://www.ohchr.org/english/law/cescr.htm. Similar provisions can be found in major regional human rights instruments, namely Article 13.2 of the American Declaration of the Rights and Duties of Man of 1948, Article 14.1(c) of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights of 1988, and, although not explicitly, in Article 1 of Protocol No. 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1952.
95. General Comment No. 17 on 'The right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary, or artistic production of which he is the author' (Article 15, paragraph 1(c) of the Covenant), adopted on 21 November 2005 by the UN Committee on Economic, Social, and Cultural Rights. UN document E/C.12/GC/17.
96. For discussion of the Preamble to the WTO Agreement, see section I above.
97. The TRIPS Agreement incorporates by reference, inter alia, the substantive obligations of the main conventions of the World Intellectual Property Organization (WIPO), namely the Paris Convention and the Berne Convention. Moral rights conferred under Article 6bis of the Berne Convention to authors of literary and artistic works were not incorporated into the TRIPS Agreement as not being trade-related (see Article 9.1 of the TRIPS Agreement). However, this does not affect the obligations of WTO Members that are also parties to the Berne Convention to protect moral rights.
98. Petersmann, 'Theories of Justice, Human Rights and the Constitution of International Markets', above n 9.
99. For a general discussion on the role of non-discrimination and rule of law under the WTO, see section I above.
100. Article 15, paragraphs 1(a), 1(b), and 3, respectively.
101. Articles 6.1, 7(a) and 11.1, respectively.
102. 70 Article 19 of the UDHR and Article 19.2 of the International Covenant on Civil and Political Rights.
103. See Article 1.1 of the TRIPS Agreement.
104. This idea/expression dichotomy is confirmed in Article 9.2 of the TRIPS Agreement.
105. Under the TRIPS Agreement, the copyright term is generally 50 years after the death of the author. The term of protection has been extended to 70 years in a number of jurisdictions and free trade agreements. This has been criticized by some as going against the underlying policy objectives of the copyright system, see, for example, Lawrence Lessig, The Future of Ideas: the Fate of the Commons in a Connected World (New York: Random House, 2001).
106. However, in current discussions on a related matter, namely the protection of folklore or traditional cultural expressions, the envisaged enhanced forms of protection do not necessarily provide for the idea/expression dichotomy or contain any time limit. It appears that, to date, there has been little discussion on the potential impact of such schemes on the realization of human rights other than Article 15.1(c) rights.
107. As noted above, the TRIPS Agreement provides a fair amount of leeway to WTO Member countries to adjust the level of protection by providing limitations and exceptions to exclusive rights.
108. See, for example, Commission on Intellectual Property Rights (CIPR), Integrating Intellectual Property Rights and Development Policy, 2005. An important aspect of this issue is the role of IPRs in encouraging FDI and technology transfer; see, for example, Keith E. Maskus, 'The Role of Intellectual Property Rights in Encouraging Foreign Direct Investment and Technology Transfer', in Carsten Fink and Keith E. Maskus (eds), Intellectual Property and Development: Lessons from Recent Economic Research (New York and Oxford: World Bank and Oxford University Press, 2005) at 41-73.
109. See, for example, US Federal Trade Commission, To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy (2003); US National Research Council of the National Academies, A Patent System for the 21st Century, (2004); and US Council of Economic Advisors, Economic Report of the President (2006), chapter 10.
110. Footnote 2 of the General Comment also refers to a number of other international and regional instruments.
111. De Soto, above n 27.
112. WTO document WT/MIN(01)/DEC/2.
113. WTO document IP/C/25. As regards other areas of IPRs, the TRIPS Council, in November 2005, extended LDCs' transition period, originally set to expire at the beginning of 2006, until 1 July 2013. See WTO document IP/C/40.
114. Decision on 'Implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health', WTO document WT/L/540 and Corr. 1.
115. Decision on 'Amendment of the TRIPS Agreement', WTO document WT/L/641.
116. Smith, above n 10, Book I, chapter X, at 232.
117. Margaret Levenstein and Valerie Suslow 'Private International Cartels and their Effect on Developing Countries', Background Paper for the World Bank's World Development Report 2001, 9 January 2001, available at http://www-unix.oit. umass.edu/~maggiel /WDR2001.pdf;
118. Simon J. Evenett, Margaret Levenstein, and Valerie Suslow, 'International Cartel Enforcement: Lessons from the 1990s', 24(9) The World Economy (2001) 1221-C45;
119. Robert D. Anderson and Peter Holmes 'Competition Policy and the Future of the Multilateral Trading System', 5(2) JIEL (2002) 531-C63;
120. and Anderson and Jenny, above n 35.
121. Anderson and Jenny, above n 35.
122. Various alternative estimates are reviewed in Aditya Bhattacharjea, 'The Case for a Multilateral Agreement on Competition Policy: A Developing Country Perspective', 9(2) JIEL (2006) 293-C323.
123. Bhattacharjea, JIEL (ibid.
124. For an inventory of such cases in Sub-Saharan Africa, see Simon J. Evenett and Frédèric Jenny, 'Sub-Saharan Competition Database', http://www.evenett.com/ssafrica.htm.
125. Robert D. Anderson, 'Meeting the Challenges of Good Governance: the Complementary Roles of Trade Liberalization and Competition Rules in Addressing Anti-competitive Barriers and Practices in National Procurement Markets', Paper Presented at a Conference on Public Procurement - Global Revolution III, University of Nottingham (19-20 June 2006).
126. Petersmann, 'Theories of Justice, Human Rights and the Constitution of International Markets', above n 9; and Petersmann, above n 51.
127. Douglas C. North, Institutions, Institutional Change and Economic Performance (Cambridge: Cambridge University Press, 1990)
128. and Douglas C. North, Understanding the Process of Economic Change (Princeton, NJ: Princeton University Press, 2005).
129. Paine, The Rights of Man, above n 11, at 313.
130. Smith, above n 10, Book I, chapter X, at 222-23.
131. See George J. Stigler, 'The Theory of Economic Regulation', 2(1) Bell Journal of Economics and Management Science (1971), 3-21;
132. William A. Jordan, 'Producer Protection, Prior Market Structure and the Effects of Government Regulation', XV(1) Journal of Law and Economics (1972), 151-76;
133. and Anne O. Krueger, 'The Political Economy of the Rent-Seeking Society', 64(3) American Economic Review (1974) 291-303.
134. Smith, above n 10, Book IV, chapter VIII, pp 226-247.
135. 405 U.S. 596 (1972), at 610.
136. William E. Kovacic, 'The Modern Evolution of U.S. Competition Policy Enforcement Norms', 71(2) Antitrust Law Journal (2004), 377-478. Kovacic also stresses the importance of transparency mechanisms in the formulation of competition policy and their contribution to the evolution of sound enforcement norms in this field.
137. Richard A. Epstein and Michael S. Greve, eds, Competition Laws in Conflict: Antitrust Jurisdiction in the Global Economy (Washington, DC: American Enterprise Institute, 2004).
138. Robert D. Anderson and Alberto Heimler, 'Abuse of Dominant Position: Enforcement Issues and Approaches for Developing Countries', Mimeo (2006).
139. See also Anderson and Holmes, above n 85.
140. Alan W. Wolff, 'The Problems of Market Access in the Global Economy: Trade and Competition Policy', Contribution to the OECD Roundtable on Market Access (30 June 1994), http://www.dbtrade.com/publications/181733a.htm.
141. Department of State, 'U.S. Proposals for an International Trade Organization': as quoted in John H. Jackson, World Trade and the Law of GATT (Charlottesville, Va.: The Michie Co., 1969), p. 522.
142. http://www.wto.org/English/docs_e/legal_e/havana_e.pdf.
143. http://www.wto.org/english/tratop_e/serv_e/telecom_e/tel23_e.htm.
144. World Trade Organization, 1997, above n 60; Anderson and Holmes, above n 85.
145. United Nations, 'The Set of Multilaterally Agreed Equitable Principles and Rules for the Control of Restrictive Business Practices', http://r0.unctad.org/en/subsites/cpolicy/docs/CPSet/cpset.htm, at 8.
146. United Nations, ibid, also at 8.
147. Singapore Ministerial Declaration, WT/MIN(96)DEC (adopted on 13 December 1996), paragraph 20.
148. See, for contrasting perspectives on the debate, Eleanor M. Fox, 'International Antitrust and the Doha Dome', 43 Virginia Journal of International Law (2003), 911 and Bhattacharjea, above n 87.
149. See also Anderson and Jenny, above n 35.
150. WT/L/579, 2 August 2004.
151. See, for discussion, Bhattacharjea, above n 87.
152. Joel Klein, 'A Note of Caution with Respect to the WTO Agenda on Competition Policy', Remarks to the Royal Institute of International Affairs, Chatham House, London (November 1996);
153. and Douglas A. Melamed, 'International Antitrust in an Age of International Deregulation', Remarks to the George Mason Law Review Symposium on Antitrust in the Global Economy, Washington, DC (October 1997).
154. See, for details, the Annual Reports of the WTO Working Group on the Interaction between Trade and Competition Policy to the General Council, 1998-2003 (Geneva: WTO), WT/WGTCP/2-8.
155. See, for example, William J. Kolasky (then US Deputy Assistant Attorney-General for Antitrust), Global Competition Convergence and Co-operation: Looking Back and Looking Ahead, Remarks to the American Bar Association Fall Forum, Washington, DC (7 November 2002).
156. Anderson and Jenny, above n 35.
157. Panel report, Mexico: Measures affecting Telecommunications Services, WT/DS204/R (adopted 1 June 2004).
158. See, for a lucid analysis, Eleanor M. Fox, 'The WTO's First Antitrust Case - Mexican Telecom: A Sleeping Victory for Trade and Competition', 9(2) JIEL (2006), 271-92.
159. Clarke and Evenett, above n 35, at 117-18.
160. Birdsall and Lawrence, above n 44.
161. For documentation and analysis of such arrangements, see Oliver Solano and Andreas Sennekamp, 'Competition Provisions in Regional Trade Agreements', OECD Trade Policy Working Papers, No. 31, OECD;
162. and Philippe Brusick, Ana Maria Alvarez, and Lucian Cernat (eds), Competition Provisions in Regional Trade Agreements: How to Assure Development Gains (Geneva: United Nations).
163. These are exclusive grant-back conditions, conditions preventing challenges to validity and coercive package licensing.
164. Specifically, those contained in subparagraphs (b) and (f) of paragraph 31.
165. See discussion in World Trade Organization 1997, above n 59, at 72-4.
166. Robert D. Anderson, 'Intellectual Property Rights, Competition Policy and International Trade: Reflections on the Work of the WTO Working Group on the Interaction between Trade and Competition Policy', in Thomas Cottier and Petros Mavroidis (eds), Intellectual Property: Trade, Competition and Sustainable Development, (Ann Arbor: University of Michigan Press, December 2002), chapter 17;
167. Frederick M. Abbott, 'Are the Competition Rules in the WTO TRIPS Agreement Adequate?', 7 JIEL (2004), 687;
168. and Frederick M. Abbott, 'The "Rule of Reason" and the Right to Health: Integrating Human Rights and Competition Principles in the Context of TRIPS', in Abbott et al., above n 7, at 279-300.
169. Anderson, ibid. Abbott, taking a subtly different perspective, argues that developing countries are well served by the broad wording of the competition provisions of the Agreement which, in his view, permits a stricter approach to anti-competitive practices impacting on public health as opposed to non-health-related markets, and that such treatment is justified on policy grounds. His argument builds on the importance of the 'rule of reason' in modern competition law (i.e. the case-by-case analysis of market restraints taking broad account of the circumstances and interests affected) and the right to health as it is established in international law. Abbott, 'The "Rule of Reason" and the Right to Health: Integrating Human Rights and Competition Principles in the Context of TRIPS', ibid.
170. See Jefferson Parish Hospital District No. 2 v. Hyde, 466 U.S. 2 (US Supreme Court), and past precedents cited therein.
171. US Department of Justice and Federal Trade Commission, Antitrust Guidelines on Intellectual Property Licensing (US Government Printing Office, 1995).
172. 126 S. Ct. 1281 (2006).
173. The various recent cases involving the Microsoft corporation provide obvious examples.
174. Radio Telefis Eireann (RTE) and Independent Television Publications Ltd (ITP) v Commission (Magill) [1995] ECR 743.
175. IMS Health GmbH & Co. OHG v NDC Health GmbH & Co. KG, [2004] ECR I-5039.
176. See, for a recent contribution, Makan Delrahim (then US Deputy Assistant Attorney-General for Antitrust), 'Forcing Firms to Share the Sandbox: Compulsory Licensing of Intellectual Property Rights and Antitrust', Remarks before the British Institute of International and Comparative Law, London, UK (2004).
177. There are, nonetheless, important residual differences in the treatment of licensing practices among jurisdictions, perhaps particularly between the US and the European Community.
178. See also Anderson and Heimler, above n 100.
179. See, for further discussion, US Department of Justice and Federal Trade Commission, above n 120;
180. and the various essays in Robert D. Anderson and Nancy T. Gallini, Competition Policy and Intellectual Property Rights in the Knowledge-based Economy (Calgary: University of Calgary Press for the Industry Canada Research Series, 1998).
181. Lamy, above n 1.
182. Among the important early contributions are Stigler, above n 94, Jordan, above n 94, and Krueger, above n 94.