Access to medicines, BRICS alliances and collective action

American Journal of Law and Medicine

Volumn 34, Issue 2-3, 2008, Pages 345-394

  Yu, Peter K ^a,b,c  

^a DRAKE UNIVERSITY   (United States)

^b ZHONGNAN UNIVERSITY OF ECONOMICS AND LAW   (China)

^c UNIVERSITY OF HONG KONG   (Hong Kong)

Author keywords

[No Author keywords available]

Indexed keywords

GENERIC DRUG; DRUG;

CONFERENCE PAPER; DRUG INDUSTRY; DRUG MANUFACTURE; DRUG MARKETING; HEALTH CARE ACCESS; HEALTH CARE POLICY; PATENT; PUBLIC HEALTH; PURCHASING; ARTICLE; ECONOMICS; HEALTH CARE DELIVERY; HUMAN; HUMAN IMMUNODEFICIENCY VIRUS INFECTION; INTERNATIONAL COOPERATION; LEGAL ASPECT;

HEALTH SERVICES ACCESSIBILITY; HIV INFECTIONS; HUMANS; INTERNATIONAL COOPERATION; PHARMACEUTICAL PREPARATIONS;

EID: 58149106216     PISSN: 00988588     EISSN: None     Source Type: Journal    
DOI: 10.1177/009885880803400210     Document Type: Conference Paper

References (311)

1. See General Council, Amendment of the TRIPS Agreement, WT/ L/641 (Dec. 8, 2005), available at www.wto.org/english/tratop_e/ trips_e/wtl641_e.htm [hereinafter TRIPs Amendment].
2. See Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, Legal Instruments - Results of the Uruguay Round, 33 I.L.M. 1197 (1994) [hereinafter TRIPs Agreement], available at www.wto.org/english/docs_e/legal_e/27_trips.pdf
3. See World Trade Organization [WTO], Declaration on the TRIPS Agreement and Public Health, WT/MIN(01)/DEC/2, 41 I.L.M. 755 (2002) [hereinafter Doha Declaxation].
4. Although the initial deadline for ratification was December 1, 2007, the deadline has been recently extended for another two years. William New, TRIPS Council Extends Health Amendment; Targets Poor Nations'Needs, INTELL. PROP. WATCH, Oct. 23, 2007, www.ip-watch.org/weblog/index.php?p=798. As of this writing, slightly over a quarter of the 151 WTO member states, including the United States, India, Japan, China, and most recently members of the European Communities, have ratified the proposed amendment. Press Release, WTO, Countries Accepting Amendment of the TRIPS Agreement (Aug. 2, 2007), www.wto.org/english/tratop_e/trips_e/amendment-e.htm.
5. TRIPs Amendment, supra note 1, art. 31bis(3).
6. The TRIPs Agreement distinguishes between developing and least developed countries. This Article uses "less developed countries" to denote both developing and least developed countries. When referring to the TRIPS Agreement, however, this Article returns to the terms "developing countries" and "least developed countries."
7. See Peter K. Yu, The International Enclosure Movement, 82 IND. L.J. 827, 848 (2007).
8. See Frederick M. Abbott & Jerome H. Reichman, The Doha Round's Public Health Legacy: Strategies for the Production and Diffusion of Patented Medicines Under the Amended TRIPS Provisions, 10 J. INT'L ECONN. L. 921, 973-77 (2007) (discussing the potential benefits of pooled procurement strategies and the establishment of regional pharmaceutical supply centers).
9. See SISULE F. MUSUNGU ET AL., UTILIZING TRIPS FLEXIBILITIES FOR PUBLIC HEALTH PROTECTION THROUGH SOUTH-SOUTH REGIONAL FRAMEWORKS, XV-XVi (2004), www.southcentre.org/ index2.php?option=com_docman&task=doc_view&gid=9&Itemid=68 (advocating the establishment of "regional procurement systems where they would jointly conduct tendering through an entity acting on their behalf and a central purchasing agency managing the purchases on behalf of all the member countries")
10. see also id. at 70-73 (discussing regional procurement systems).
11. See TRIPS Amendment, supra note 1, art. 31bis annex 5.
12. See id. art. 31bis(3) (requiring that "at least half of the current membership of [the regional trade agreement] is made up of countries presently on the United Nations list of least developed countries").
13. Abbott & Reichman, supra note 8, at 945.
14. Dominic Wilson & Roopa Purushothaman, Dreaming with BRICs: The Path to 2050 (Goldman Sachs, Global Economics Paper No. 99), www2.goldmansachs.com/ideas/global-growth/99-dreaming.pdf
15. GOLDMAN SACHS GLOBAL ECONOMICS GROUP, BRICs AND BEYOND 5 (2007) [hereinafter BRICs AND BEYOND].
16. Wilson & Purushothaman, supra note 13, at 4.
17. See, e.g., BUILDING A FUTURE WITH BRICs: THE NEXT DECADE FOR OFFSHORING 1, 3 (Mark Kobayashi-Hillary ed., 2008) [hereinafter BUILDING A FUTURE WITH BRIC]
18. EMERGING ECONOMIES AND THE TRANSFORMATION OF INTERNAT10NAL BUSINESS: BRAZIL, RUSSIA, INDIA AND CHINA (Subhash C. Jain ed., 2007) [hereinafter EMERGING ECONOMIES];
19. BRICS AND BEYOND, supra note 14
20. Dominic Wilson et al., The BRICs and Global Markets: Crude, Cars and Capital (Goldman Sachs, Global Economics Paper No. 118, 2004), available at www.new-frontiers.org/classicdoes/ thebricsreport.pdf
21. Wilson et al., supra note 16, at 4.
22. Id.
23. Id. at 11.
24. See Press Release, Brazilian Ministry of Health, Brasil decreta licenciamento compulsório do Efavirenz (May 5, 2007), available at portal.saude.gov.br/portal/aplicacoes/noticias/ noticias_detalhe.cfm?co↘q∉ticia=29717. As Robert Bird and Daniel Cahoy have noted, "[i]t is likely that the move was at least partially sparked by the desire to obtain the same price Thailand secured following its successful issuance of several compulsory licenses for AIDS and heart drugs." Robert C. Bird & Daniel R. Cahoy, The Emerging BRIC Economies: Lessons ftom Intellectual Property Negotiation and Enforcement, 5 Nw. J. TECH. & INTELL. PROP. 400, 421 (2007) [hereinafter Bird & Cahoy, Emerging BRIC Economies].
25. Ellen't Hoen, TRIPS, Pharmaceutical Patents, and Access to Essential Medicines: A Long Way from Seattle to Doha, 3 CHI. J. INT'L L. 27, 32 (2002).
26. See id. (noting that "[t]he Brazil AIDS program serves as a model for some developing countries that are able to produce medicines locally")
27. COMM'N ON INTELLECTUAL PROP. RIGHTS, INTEGRATING INTELLECTUAL PROPERTY RIGHTS AND DEVELOPMENT POLICY: REPORT OF T171F COMMISSION ON INTELLECTUAL PROPERTY RIGHTS 43 (2003) (noting that the National STD/AIDS Programme in Brazil "has been widely acclaimed as a possible model for other countries")
28. John S. Odell & Susan K. Sell, Reframing the Issue: The WTO Coalition on Intellectual Property and Public Health, 2001, in NEGOTIATING TRADE: DEVELOPING COUNTRIES IN THE WTO AND NAFTA 85, 96 (John S. Odell ed., 2006) (observing that "[d]developing countries looked to Brazil as a beacon of hope in strategies to combat the HIV/AIDS crisis").
29. See JAYASHREE WATAL, INTELLECTUAL PROPERTY RIGHTS IN THE WTO AND DEVELOPING COUNTRIES 19 (2001). The other countries were Argentina, Cuba, Egypt, India, Nicaragua, Nigeria, Peru, Tanzania, and Yugoslavia.
30. The current members of the G-20 are Argentina, Bolivia, Brazil, Chile, China, Cuba, Ecuador, Egypt, Guatemala, India, Indonesia, Mexico, Nigeria, Pakistan, Paraguay, Peru, Philippines, South Africa, Tanzania, Thailand, Uruguay, Venezuela, and Zimbabwe. The website of the G-20 is available at www.g-20.mre.gov.br. Notably, the G-20 includes all BRICS countries that are members of the WTO. G-20, G-20 Members, www.g-20.mre.gov.br/members.asp (last visited Apr. 10, 2008).
31. See Elizabeth Becker, Poorer Countries Pull Out of Talks Over World, N.Y. TIMES, Sept. 15, 2003, at A1
32. Editorial, The Caneun Failure, N.Y. TIMES, Sept. 16, 2003, at A24 [hereinafter The Cancun Failure.
33. See Press Release, World Intellectual Prop. Org. [WIPO], Member States Agree to Further Examine Proposal on Development (Oct. 4, 2004), available at www.wipo.int/edocs/prdocs/en/2004/ wipo-pi~-2004_396.html.
34. Press Release, WIPO, Member States Adopt a Development Agenda for WIPO (Oct. 1, 2007), available at www.wipo.int/pressroom/en/articles/ 2007/article_0071.html.
35. See Brian Fitzgerald & Nic Suzor, Legal Issues for the Use of Free and Open Source Software in Government, 29 MELB. U. L. REV. 412, 422 (2005) (including South Africa, Brazil, Spain, Finland, and India among "examples of governments moving towards open source solutions");
36. Daniel F. Olejko, Comment, Charming a Snake: Open Source Strategies for Developing Countries Disillusioned with TRIPs, 25 PA. ST. INT'L L. REV. 855, 858 (2007) (noting that "Whe [open source] movement's strongest support and largest concentration of countries lies in South America where Argentina, Brazil, Chile, Peru, and Venezuela have displayed wide acceptance of open source software in both government and industry").
37. See Request for Consultations by Brazil, United States-US Patents Code, WT/DS224/1 (Feb. 7, 2001). It is important to note that the request was made in response to the United States' challenge of Brazil's patent laws before the WTO. As Gregory Shaffer lamented, "Brazil...never seriously pursued their claims to advance commercial interests, but rather searched for bargaining chips for a potential settlement of the US and EC complaints." Gregory Shaffer, Recognizing Public Goods in WTO Dispute Settlement: Who Participates? Who Decides? The Case of TRIPS and Pharmaceutical Patent Protection, 7 J. INT'L ECON. L. 459, 471 (2004) [hereinafter Shaffer, Recognizing Public Goods].
38. See Request to Join Consultations by India, United States-US Patents Code, WT/DS224/2 (Feb. 19, 2001).
39. See Srividhya Ragavan, Of the Inequals of the Uruguay Round, 10 MARQ. INTELL. PROP. L. REV. 273, 278-89 (2006) (discussing the Ayyangar Committee Report and early patent reforms in India).
40. See Peter Drahos, Securing the Future of Intellectual Property: Intellectual Property Owners and Their Nodally Coordinated Enforcement Pyramid, 36 CASE W. RES. J. INT'L L. 53, 76 (2004) (noting that "India's success in building a strong pharmaceutical industry was based in large measure upon its recognition of patents for pharmaceutical processes, but not for pharmaceutical products").
41. See id. at 289-92.
42. See Barbara A. Ringer, The Role of the United States in International Copyright - Past, Present, and Future, 56 GEO. L.J. 1050, 1065 (1968). For a detailed discussion of the origin and aftermath of the Stockholm Protocol, see SAM RiCKETSON & JANE C. GINSBURG, INTERNATIONAL COPYRIGHT AND NEIGHBORING RIGHTS: THE BERNE CONVENTION AND BEYOND 879-963 (2d ed. 2005).
43. See Peter K. Yu, Currents and Crosscurrents in the International Intellectual Property Regime, 38 Loy. L.A. L. REV . 323, 328 (2004) [hereinafter Yu, Currents and Crosscurrents].
44. Paris Convention for the Protection of Industrial Property, Mar. 20, 1883, as last revised at Stockholm, July 14,1967,21 U.S.T. 1538, 828 U.N.T.S. 305.
45. Watal, supra note 23, at 16.
46. See id.
47. See Yu, Currents and Crosscurrents, supra note 35, at 357-66.
48. See IP Justice, United States Trade Representative (USTR) Section 301 Annual Reports (2001-2007), ipjustice.org/USTR/ Section_301_Table_2001-2007.htm (last visited Jan. 26, 2008).
49. Panel Report, India-Patent Protection for Pharmaceutical and Agricultural Chemical Products, VVT/DS50/R (Sept. 5, 1997)
50. Panel Report, India-Patent Protection for Pharmaceutical and Agricultural Chemical Products, WT/DS79/R (Aug. 24, 1998). Article 70(8) of the TRIPs Agreement requires those member states that do not offer protection for patents in pharmaceutical and agricultural chemical products to introduce a mechanism to adequately preserve the novelty and priority of applications for the affected patents. TRIPs Agreement, supra note 2, art. 70(8). Article 70(9) further requires these member states to establish a system for granting exclusive rights to market the affected products. Id. art. 70(9).
51. For a comprehensive discussion of the recent changes in Indian patent law, see generally Janice M. Mueller, The Tiger Awakens: The Tumultuous Transformation of India's Patent System and the Rise of Indian Pharmaceutical Innovation, 68 U. PITT. L. REV. 491 (2007)
52. Ragavan, supra note 31.
53. See Yu, The International Enclosure Movement, supra note 7, at 863.
54. KAMAL NATH, INDIA'S CENTURY 110 (2008)
55. see also Colleen Chien, HIV/AIDS Drugs for Sub-Saharan Affica: How Do Brand and Generic Supply Compare? 2 PLOS ONE e278 (2007) (reporting that India provided 85% of generic HIV/AIDS antiretrovirals in Sub-Saharan Africa), available at ssrn.com/abstract=1009287.
56. Symposium, China and the WTO: Progress, Perils, and Prospects, 17 COLUM. J. ASIAN L. 1, 2 (2003) [hereinafter Symposium, China and the WTO].
57. For discussions of piracy and counterfeiting problems in China in the 1980s and 1990s, see Peter K. Yu, From Pirates to Partners: Protecting Intellectual Property in China in the Twenty-First Century, 50 Am. U. L. REV. 131 (2000) [hereinafter Yu, From Pirates to Partners I]
58. Peter K. Yu, Piracy, Prejudice, and Perspectives: Using Shakespeare to Reconfigure the U.S.-China Intellectual Property Debate, 19 B.U. INT'L. L.J. 1 (2001).
59. See Request for the Establishment of a Panel by the United States, China - Measures Affecting the Protection and Enforcement of Intellectual Property Rights, WT/DS362/7 (Aug. 21, 2007).
60. Constitution of the Panel Established at the Request of the United States, China - Measures Affecting the Protection and Enforcement of Intellectual Property Rights, WTO/DS362/8 (Dec. 13, 2007). Third parties involved in this dispute include Argentina, Australia, Brazil, Canada, the European Communities, India, Japan, Korea, Mexico, Chinese Taipei, Thailand, and Turkey. Id. 5.
61. See Peter K. Yu, From Pirates to Partners (Episode II): Protecting Intellectual Property in Post-WTO China, 55 AM. U. L. REV. 901, 975-99 (2006) [hereinafter Yu, From Pirates to Partners I (examining the progress China has made in the intellectual property arena).
62. See Peter K. Yu, International Enclosure, the Regime Complex, and Intellectual Property Schizophrenia, 2007 MICH. ST. L. REV. 1, 25-26 [hereinafter Yu, International Enclosure, the Regime Complex].
63. See Henry S. Gao, China's Participation in the WTO: A Lawyer's Perspective, 11 SING. YB. INT'L L. 1, 29-30 (2007) (explaining why "China has consistently taken a low profile in all WTO activities")
64. see also Yan Li, Faint Silhouette: Can China Be a WTO Leader?, WASH. OBSERVER, Dec. 14, 2005, www.washingtonobserver.org/en/topic.cfm?topicid=29&charid=3 (reporting an interview with the Author on China's potential leadership in the WTO).
65. Sungjoon Cho, A Bridge Too Far: The Fall of the Fifth WTO Ministerial Conference in Cancún and the Future of Trade Constitution, 7 J. INT'L ECON. L. 219, 235 (2004).
66. See Bird & Cahoy, The Emerging BRIC Economies, supra note 20, at 409 (noting that "India lacks the economic power of China and the political importance of Russia in the eyes of the United States").
67. Symposium, China and the WTO, supra note 45, at 2.
68. See INT'L INTELLECTUAL PROP. ALLIANCE, 2007 SPECIAL 301 REPORT 115 (2007) (noting that "Russia's current copyright piracy problem remains one of the worst of any country in the world").
69. See OFFICE OF THE U.S. TRADE REPRESENTATIVE, 2007 NATIONAL TRADE ESTIMATE REPORT ON FOREIGN TRADE BARRIERS 498 (2007).
70. See Wilson & Purushothaman, supra note 13, at 11.
71. See, e.g., SUSAN K. SELL, PRIVATE POWER, PUBLIC LAW: THE GLOBALIZATION OF INTELLECTUAL PROPERTY RIGHTS 146-62 (2003)
72. Debora Halbert, Moralized Discourses: South Afiica's Intellectual Property Fightfor Access to AIDS Drug, 1 SEATTLE J. SOC. JUST. 257 (2002)
73. 't Hoen, supra note 22.
74. See Sonia E. Rolland, Developing Country Coalitions at the WTO: In Search of Legal Support, 48 HARV. INT'L L.J. 483, 496 (2007).
75. General Council, Implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health, WT/L/540 (Sept. 1, 2003),43 I.L.M. 509 (2004).
76. See YU, The International Enclosure Movement, supra note 7, at 865-66.
77. See SELL, supra note 58, at 181 (observing that "[t]he HIV/AIDS pandemic was a contingency that sped up the revelation of the negative consequences of TRIPS");
78. Ruth Mayne, The Global Campaign on Patents and Access to Medicines: An Oxfam Perspective, in GLOBAL INTELLECTUAL PROPERTY RIGHTS: KNOWLEDGE, ACCESS AND DEVELOPMENT 244, 249 (Peter Drahos & Ruth Mayne eds., 2002) (noting that "[t]he South African government's decision to fight the case was a critical factor in generating global media interest").
79. See SELL, supra note 58, at 151.
80. See id. at 152.
81. See id. at 152-53
82. see also Halbert, supra note 58, at 270.
83. See't Hoen, supra note 21, at 31.
84. For a discussion of the different challenges confronting the BRICS countris, see Jack N. Behrman, Peak and Pits with BRICs: Accomodations with the West, in EMERGING ECONOMIES, supra note 13, at 513.
85. Wilson & Purushothaman, supra note 13, at 3.
86. Id. at 2.
87. Id.
88. Wilson et al., supra note 16, at 3.
89. Frederick M. Abbott, Toward a New Era of Objective Assessment in the Field of TRIPS and Variable Geometry for the Preservation of Multilateralism, 8 J. Int'l Econ. L. 77, 88 (2005). Notably, Professor Abbott did not include Russia in his discussion, because it was not a WTO member. Id.
90. Peter Drahos, Developing Countries and International Intellectual Property Standard-Setting. 5 J. WORLD INTELL. PROP. 765, 784 (2002) [hereinafter Drahos, Developing Countries]. Professor Drahos also excluded Russia. Id. Unlike Professor Abbott, however, Professor Drahos included Nigeria, instead of South Africa, in the mix. Id. Although South Africa is included in the BRICS acronym used throughout this Article, Nigeria remains of great importance within the African continent. As Chris Alden noted: "Like ist South African counterpart, the Nigerian government harbours ambitions to take up the proposed African permanent seat on the UN Security Council...." CHRIS ALDEN, CHINA IN AFRICA: PARNTER, COMPETITOR OR HEGEMON? 69 (2007). Likewise, in a recent report on the BRIC economies, Jim O'Neill noted: "Nigeria is one country that deserved a special mention, and is certainly a country that has captured my attention. With a population close to three times that of South Africa, Nigeria's ability to deliver on our dream could be vital for the whole African continent." BRICs and BEYOND, supra note 14, at 6.
91. See Yu, Currents and Crosscurrents, supra note 35, at 363.
92. For information about trilateral cooperation between the European Patent Office, the Japanese Patent Office, and the U.S. Patent and Trademark Office, see Webssite of the Trilateral Co-operation, www.trilateral.net (last visited Apr.17,2008).
93. For a recent critique of the proposed Substantive Patent Law Treaty, see generally Jerome H. Reichman & Rochelle Cooper Dreyfuss, Harmonization Without Consensus: Critical Reflections on Drafting a Substantive Patent Law Treaty, 57, DUKE L.J. 85 (2007).
94. See AMRITA NARLIKAR, INTERNATIONAL TRADE AND DEVELOPING COUNTRIES: BARGAINING COALITIONS IN THE GATT AND WTO 200 (2003) (noting that "t[he] Cairns Group utilized the rift within the US-EC with great skill")
95. Rolland, supra note 59, at 503 (noting the "strategic exploitation of rifts between the United States, the EU, and Japan")
96. Peter K. Yu, TRIPS and Its Discontents, 10 MARQ. INTELL. PROP. L. REV. 369, 406-08 (2006) (noting the need to "explore the tension between the European Communities and the United States").
97. John S. Odell, Introduction to NEGOTIATING TRADE, supra note 22, at 1, 13.
98. Cf. Mark Kobayashi-Hillary, Introduction to BUILDING A FUTURE WITH BRICS, supra note 16, at 1, 3 ("If the BRICS were to join together and form a unique trading bloc of countries that are not even geographical neighbors, but complementary in other ways, then the could create a formidable rival to the present world-order and established power structures.").
99. See Yu, Currents and Crosscurrents, supra note 35, at 357.
100. See Keith E. Maskus & Jerome H. Reichman, The Globalization of Private Knowledge Goods and the Privatization of Global Public Goods, in INTERNATIONAL PUBLIC GOODS AND TRANSFER OF TECHNOLOGY UNDER A GLOBALIZED INTELLECTUAL PROPERTY REGIME 3, 36-39 (Keith E. Maskus & Jerome H. Reichman eds., 2005) (calling for a "moratorium on stronger international intellectural property standards").
101. See Yu, The International Enclosure Movement, supra note 7, at 897-99 (discussing the need for undertaking empirical research to determine whether the additional intellectual property protection is needed in the first place).
102. Pedro Roffe et al., From Paris to Doha: The WTO Doha Declaration on the TPIPS Agreement and Public Health, in NEGOTIATING HEALTH: INTELLECTUAL PROPERTY AND ACCESS TO MEDICINES 9, 15 (Pedro Roffe et al. eds., 2006).
103. NARLIKAR, supra note 77, at 57.
104. Joan Rovira, Creating and Promoting Domestic Drug Manufacturing Capacities: A Solution for Developing Countries, in NEGOTIATING HEALTH, supra note 83, at 227, 236.
105. See generally Yu, The International Enclosure Movement, supra note 7, at 872-86 (tracing the development of proposed article 31 bis of the TRIPs Agreement).
106. See Drahos, Developing Countries, supra note 73, at 769 ("For the United States, developing country proposals for exclusive compulsory licensing amounted to little more than expropriation of U.S. intellectual property rights.").
107. Eyal Benvenisti & George W. Downs, Distributive Politics and International Institutions: The Case of Drugs, 36 CASE W. RES. J. INT'L L. 21, 44 (2004).
108. Rovira, supra note 85, at 234.
109. See id. at 229 (noting that a limited market size "might make unprofitable a local industry restricted to the domestic market").
110. See Keith E. Maskus, Ensuring Access to Essential Medicines: Some Economic Considerations, 20 Wis. INT'L L.J. 563, 568 (2002) ("P]urchasing power, even if aggregated across a number of markets, may not be enough to make drug development attractive.").
111. As the Federal Food, Drug, and Cosmetic Act stated: A drug shall be considered to be bioequivalent to a listed drug if- (i) the rate and extent of absorption of the drug do not show a significant difference from the rate and extent of absorption of the listed drug when administered at the same molar dose of the therapeutic ingredient under similar experimental conditions in either a single dose or multiple doses; or (ii) the extent of absorption of the drug does not show a significant difference from the extent of absorption of the listed drug when administered at the same molar dose of the therapeutic ingredient under similar experimental conditions in either a single dose or multiple doses and the difference from the listed drug in the rate of absorption of the drug is intentional, is reflected in its proposed labeling, is not essential to the attainment of effective body drug concentrations on chronic use, and is considered medically insignificant for the drug. 21 U.S.C. § 355(j)(8)(B) (2004).
112. Rovira, supra note 85, at 234.
113. Id. (citing W.A. KAPLAN & R. LAING, LOCAL PRODUCTION OF PHARMACEUTICALS: INDUSTRIAL POLICY AND ACCESS TO MEDICINES: AN OVERVIEW OF KEY CONCEPTS, ISSUES AND OPPORTUNITIES FOR FUTURE RESEARCH (World Bank, HNP Discussion Papers, 2005), siteresources.worldbank.org/ HEALTHNUTRITIONANDPOPULATION/Resources/281627- 1095698140167/ KaplanLocalProductionFinal.pdf).
114. Rovira, supra note 85, at 233 (quoting World Health Organization, Manufacture of Antiretrovirals in Developing Countries and Challenges for the Future, at 1, EB114/15 (Apr. 29, 2004), available at www.who.int/gb/ebwha/pdffiles/EB114/B114 15-en.pdf).
115. See GIAN LUCA BURCI & CLAUDE-HENRI VIGNES, WORLD HEALTH ORGANIZATION 188 (2004) ("[E]ven if drugs are available, weak drug regulation may mean that they are substandard or counterfeit.")
116. MUSUNGU ET AL., supra note 9, at 28 ("Many developing countries ... lack the facilities and expertise needed to review the safety, efficacy and quality of drugs destined for their national markets, and remain dependent on foreign authorities to set the necessary standards and do the necessary testing.")
117. Nitya Nanda & Ritu Lodha, Making Essential Medicines Affordable to the Poor, 20 WIS. INT'L L.J. 581, 586 (2002) ("Surveys from a number of developing countries show that between 10 and 20 percent of sampled drugs fail quality control tests.").
118. See Dimitry Ponomarev, Dreaming with BRICs, in BUILDING A FUTURE WITH BRICS, supra note 16, at 87, 89 (noting that the four BRIC countries "perfectly complement each other").
119. See Karin Timmermans, Ensuring Access to Medicines in 2005 and Beyond, in NEGOTIATING HEALTH, supra note 83, at 41, 42 (noting that "Indian companies are major suppliers of generic medicines and of the active pharmaceutical ingredients (APIs) necessary for their production to other developing and developed countries").
120. Rovira, supra note 85, at 231.
121. Id.
122. See Gerald J. Mossinghoff, Research-Based Pharmaceutical Companies: The Need for Improved Patent Protection Worldwide, 2 J.L. & TECH. 307, 307 (1987) ("Whether [the commitment of America's research-based pharmaceutical companies] can continue depends greatly upon the extent to which foreign governments allow innovators to be rewarded for their inventiveness, monetary investment, and intellectual labor.")
123. Judy Slinn, Research and Development in the UK Pharmaceutical Industry from the Nineteenth Century to the 1960s, in DRUGS AND NARCOTICS IN HISTORY 168, 168 (Roy Porter & Mikul Teich eds., 1995) (noting that "new drugs must be sold worldwide, since no company can fully exploit a patented product, recouping its research and development costs solely in its own home market, even in the two largest national markets, the USA and Japan"), quoted in GRAHAM DUTFIELD, INTELLECTUAL PROPERTY RIGHTS AND THE LIFE SCIENCE INDUSTRIES: A 20TH CENTURY HISTORY 108 (2003).
124. Mark Kobayashi-Hillary, Conclusion, in BUILDING A FUTURE WITH BRICS, supra note 16, at 185, 186.
125. Shubham Chaudhuri & Martin Ravallion, Partially Awakened Giants: Uneven Growth in China and India, in DANCING WITH GIANTS: CHINA, INDIA, AND THE GLOBAL ECONOMY 175, 175-76 (L. Alan Winters & Shahid Yusuf eds., 2007) [hereinafter DANCING WITH GIANTS].
126. See Peter K. Yu, Intellectual Property, Economic Development, and the China Puzzle, in INTELLECTUAL PROPERTY, TRADE AND DEVELOPMENT: STRATEGIES TO OPTIMIZE ECONOMIC DEVELOPMENT IN A TRIPS PLUS ERA 173, 198-209 (Daniel J. Gervais ed., 2007)
127. see also Keith E. Maskus et al., Intellectual Property Rights and Economic Development in China, in INTELLECTUAL PROPERTY AND DEVELOPMENT: LESSONS FROM RECENT ECONOMIC RESEARCH 295, 322-23 (Carsten Fink & Keith E, Maskus eds., 2005) (noting the "large regional differences in the shares of R&D performed by various organizations" in China).
128. NATH, supra note 44, at 151.
129. ROBYN MEREDITH, THE ELEPHANT AND THE DRAGON: THE RISE OF INDIA AND CHINA AND WHAT IT MEANS FOR ALL OF US 126 (2007).
130. Thanks to Brook Baker for providing detailed and informative comments on the development of the pharmaceutical sectors in the BRICS countries.
131. See Yu, International Enclosure, the Regime Complex, supra note 50, at 16-17.
132. Cho, supra note 52, at 236 (footnotes omitted). Similarly, Sonia Rolland observed the different positions on agriculture taken by Brazil and India: Brazil had a liberal approach to further its export interest, whereas India maintained conservative positions with respect to liberalization of the agriculture sector and had a protectionist stance. Brazil's shift toward a more aggressive stance on agriculture corresponded to its liberalization of the agricultural sector and the increased pressure by domestic investors on the government on this issue both in negotiating rounds and in dispute settlement (particularly in disputes with Europe and the United States).
133. Rolland, supra note 59, at 495.
134. Frederick Abbott, The Future of IPRs in the Multilateral Trading System, in TRADING IN KNOWLEDGE: DEVELOPMFNT PERSPECTIVES ON TRIPS, TRADE AND SUSTAINABILITY 36, 42 (Christophe Bellmann et al. eds., 2003) [hereinafter Abbott, Future of IPRs].
135. See NARLIKAR, supra note 77, at 176.
136. See Rolland, supra note 59, at 510 (noting that "groups of members sharing common profiles and common interests ... are better candidates for institutional and legal support than ad hoc issue-based coalitions").
137. Abbott,Future of IPRs, supra note 110, at 42.
138. See NATH, supra note 44, at 49-61 (discussing the economic problems and reforms in India in the early 1990s).
139. See Peter K. Yu, A Tale of Two Development Agendas, 34 OHIO N.U. L. REV. (forthcoming 2008).
140. For a discussion of collaborative initiatives between the BRIC countries, see Behrman, supra note 67, at 528-31.
141. See Yu, The International Enclosure Movement, supra note 7, at 842-43.
142. For a discussion of neglected diseases, see sources cited id. at 841-43.
143. See id. at 900 (noting the importance of exploring alternative proposals that "can be compatible with existing treatments in less developed countries, such as the use of traditional Inedicine")
144. Obijiofor Aginam, From the Core to the Peripheries: Multilateral Governance of Malaria in a Multi-Cultural World, 3 CHI. J. INT'L L. 87, 93 (2002) ("Ethnomedical knowledge of plants by indigenous people across societies and cultures has 'long served as [a] crucial source[] of medicines either directly as [a source of] therapeutic agents, as [a] starting Point[] for the elaboration of more complex semi-synthetic compounds or as synthetic compounds."')
145. Nanda & Lodha, supra note 96, at 586 ("In developing countries, up to 80 percent of the population relies on traditional medicine to meet its health-care needs. Such medicine is not only affordable, but it is also widely available and trusted.").
146. For a comprehensive discussion of these regional initiatives, see MUSUNGU ET AL., supra note 9.
147. Id. at 35-36.
148. Robert Bird & Daniel R. Cahoy, The Impact of Compulsory Licensing on Foreign Direct Investment: A Collective Bargaining Approach, 45 AM. BUS. L.J. 283, 317 (2008) [hereinafter Bird & Cahoy, The Impact of Compulsory Licensing].
149. See Bird & Cahoy, The Emerging BRIC Economies, supra note 20, at 421 (footnote omitted).
150. For a detailed assessment of the participation of Brazil and India in the WTO dispute settlement process, see William J. Davey, The WTO Dispute Settlement System: The First Ten Years, 8 J. INT'L ECON. L. 17, 40-45 (2005) [hereinafter Davey, WTO Dispute Settlement System].
151. See Request for Consultations by Brazil, United States-US Patents Code, WT/DS224/1 (Feb. 7,2001).
152. See Request for Consultations by the United States, Brazil-Measures Affecting Patent Protection, WT/DS199/1 (June 8, 2000).
153. See Panel Report, India-Patent Protection for Pharmaceutical and Agricultural Chemical Products, WT/DS50/R (1997)
154. Panel Report, India-Patent Protection for Pharmaceutical and Agricultural Chemical Products, WT/DS50/R (1998).
155. See Request for Consultations by the United States, China-Measures Affecting the Protection and Encement of Intellectual Property Rights, WT/DS362/1 (Apr. 16, 2007).
156. TRIPs Agreement, supra note 2, art. 66(2).
157. Cho, supra note 52, at 226 (emphasis omitted).
158. See Frederick M. Abbott, The WTO Medicines Decision: World Pharmaceutical Trade and the Protection of Public Health, 99 AM. J. INT'L L. 317, 334 (2005) [hereinafter Abbott, WTO Medicines Decision].
159. Council for Trade-Related Aspects of Intellectual Prop. Rights, Communication from Kenya, the Coordinator of the African Group, Elements of a Paragraph 6 Solution, IP/C/W/389, 15(a) (Nov. 14, 2002).
160. Cf. Abbott, WTO Medicines Decision, supra note 131, at 334.
161. As discussed below, nongovernmental organizations in developed countries may serve similar functions. However, from the standpoint of domestic policymaking, a push by domestic constituencies is usually more persuasive than a push by nongovernmental organizations headquartered outside the country.
162. Rovira, supra note 85, at 235.
163. See id.
164. 't Hoen, supra note 22, at 32.
165. See C. FRED BERGSTEN ET AL., CHINA: THE BALANCE SHEET: WHAT THE WORLD NEEDS To KNOW NOW ABOUT THE EMERGING SUPERPOWER 114 (2006).
166. See Jim Yardley, Indian Leader in China Urges Closer Ties, N.Y. TIMES, Jan. 16, 2008, at A8. For interesting discussions of Indo-China relations, see JAIRAm RAMESH, MAKING SENSE OF CHINDIA: REFLECTIONS ON CHINA AND INDIA (2006)
167. WAHEGURU PAL SINGH SIDHU & JING DONG YUAN, CHINA AND INDIA: COOPERATION OR CONFLICT? (2003).
168. ALDEN, supra note 73, at 8.
169. See JOSHUA KURLANTZICK, CHARM OFFENSIVE: How CHINA's SOFT POWER IS TRANSFORMING THE WORLD (2007).
170. For a discussion of China's activities in Africa, see CHRIS ALDEN, CHINA IN AFRICA (2007)
171. HARRY G. BROADMAN, AFRICA's SILK ROAD: CHINA AND INDIA's NEW ECONOMIC FRONTIER (2007).
172. ALDEN, supra note 73, at 8.
173. As one commentator noted: "China ... appears to be developing an interesting strategy consisting of pressing for regional free trade agreements, not so much as a way to improve its bargaining capacity, but rather to foster its case for market economy status, a crucial element in anti-dumping actions." Rolland, supra note 59, at 498.
174. Rolland, supra note 59, at 483
175. accord NARLIKAR, supra note 77, at 2 (noting that "GATT officials reiterated the operation of 'consensus'-based decision-making procedures, and refused to acknowledge the existence of some well-entrenched coalitions").
176. Rolland, supra note 59, at 503.
177. See, e.g., Louise Amoore et al., Series Preface to NARLIKAR, supra note 77, at xiii (noting that the launch of the Doha Round was "assisted to a large degree by the conciliatory international political climate that followed the September 2001 terrorist attacks in New York and Washington").
178. Symposium, The International Intellectual Property Regime Complex, 2007 MICH. ST. L. REV. 1.
179. See Eyal Benvenisti & George W. Downs, The Empire's New Clothes: Political Economy and the Fragmentation of International Law, 60 STAN. L. REV. 595 (2007).
180. See Yu, International Enclosure, the Regime Complex, supra note 50, at 17-18.
181. See Yu, TRIPS and its Discontents, supra note 77, at 403.
182. Robert B. Zoellick, America Will Not Waitfor the Won't-Do Countries, FiN. TIMES (London), Sept. 22, 2003, at 23.
183. See Yu, Currents and Crosscurrents, supra note 35, at 413.
184. WATAL, supra note 23, at 18 (footnote omitted).
185. Drahos, Developing Countries, supra note 73, at 774.
186. Id.
187. See Becker, supra note 25
188. The Cancun Failure, supra note 25.
189. See Yu, Currents and CTosscurrents, supra note 35, at 392-400 (discussing the growing use of bilateral and regional trade agreements).
190. Cho, supra note 52, at 238 (footnote omitted)
191. see also John Braithwaite, Methods of Power for Development: Weapons of the Weak, Weapons of the Strong, 26 MICH. J. INT'L L. 297, 313 (2004) (noting that bilateral trade agreements "progressively lock more States into the preferred U.S. multilateral outcome until the point is reached where the United States can attempt to nail that multilateral agenda again")
192. Ruth L. Okediji, Back to Bilateralism? Pendulum Swings in International Intellectual Property Protection, I U. OTTAwA L. & TECH. J. 127, 143 (2004) (noting that "multilateral efforts to harmonize intellectual property norms should be anticipated by developing countries once the network of bilateral agreements is sufficiently dense to warrant a mechanism to consolidate and (perhaps improve) the gains from bilateralism")
193. Rolland, supra note 59, at 519 ("Regionalism is sometimes seen as a stepping stone toward multilateralism; given institutional and economic difficulties in developing countries such an intermediate step could be highly beneficial to the improved integration of these members in the WTO.").
194. Max Baucus, A New Trade Strategy: The Case for Bilateral Agreements, 22 CORNELL INT'L L.J. 1, 21-22 (1989).
195. Id. at 22.
196. Rolland, supra note 59, at 497. Nevertheless, there has been growing recognition of groups within the WrO. As Amrita Narlikar noted: "More recently, the Doha Development Agenda made explicit references to groups such as Small and Vulnerable Economies group and the LDC group. References to coalitions such as the Cairns Group and the ASEAN can be easily found on the WTO website." NARLIKAR, supra note 77, at 52.
197. MUSUNGU ET AL., supra note 9, at xiv.
198. William D. Coleman & Geoffrey R.D. Underhill, Introduction: Domestic Politics, Regional Economic Co-operation, and Global Economic Integration, in REGIONALISM AND GLOBAL EcoNomic INTFGRATION: EUROPE, ASIA AND THE AMERICAS 1, 1 (William D. Coleman & Geoffrey R.D. Underhill eds., 1998).
199. NARLIKAR, supra note 77, at 155.
200. Cho, supra note 52, at 238.
201. Id. at 235.
202. Andrew Hurrell & Amrita Narlikar, A New Politics of Conftontation? Brazil and India in Multilateral Trade Negotiations, 20 GLOBAL SOC'Y 415, 424 (2006).
203. See ALDEN, supra note 73, at 29.
204. Internet Corp. for Assigned Names & Numbers, Uniform Domain-Name Dispute-Resolution Policy (Aug. 26,1999), www.icann.org/udrp/ udrp.htm.
205. See Peter K. Yu, Five Disharmonizing Trends in the International Intellectual Property Regime, in 4 INTELLECTUAL PROPERTY AND INFORMATION WEALTH: ISSUES AND PRACTICES IN THE DIGITAL AGE 73, 88-91 (Peter VYu ed., 2007) (including the creation of non-national systems as a response to Internet disputes as one of the five disharmonizing trends in the international intellectual property regime).
206. Shaffer, Recognizing Public Goods, supra note 29, at 479
207. see also Antonio Ortiz Mena L.N., Getting to "No" Defending Against Demands in NAFTA Energy Negotiations,in NEGOTIATING TRADE, supra note 22, at 177, 212 (noting the need to "[e]xploit opportunities offered by [the negotiating] partner's political system to monitor and change its negotiating positions")
208. J.P. Singh, The Evolution of National Interests: New Issues and North-South Negotiations During the Uruguay Round, in NEGOTIATING TRADE, Supra note 22, at 41, 47 (noting that "divisions in the ranks of the domestic constituencies of the North can be exploited by developing countries to their benefit or can make effective agenda-setting and coalition-building difficult for the North").
209. Shaffer, Recognizing Public Goods, supra note 29, at 480
210. see also Cho, supra note 52, at 240 (noting that the support less developed countries obtain from international and nongovernmental organizations "is likely to have a ripple effect even in the domestic political realm").
211. Shaffer, Recognizing Public Goods, supra note 29, at 481.
212. Id. at 479-80.
213. NARLIKAR, supra note 77, at 4.
214. See Yu, From Pirates to Partners 1, supra note 46, at 219 (noting the need to provide "regular training programs that provide the basic understanding of intellectual property rights and general expertise in the drafting, implementation, and enforcement of intellectual property laws ... [and] advanced seminars that help people keep pace with the new legal and technological developments in the country and abroad").
215. Odell & Sell, supra note 22, at 87.
216. JOHN BRAITHWAITE & PETER DRAHOS, GLOBAL BUSINESS REGULATION 576 (2000).
217. Barbara Rosenberg, Market Concentration of the Transnational Pharmaceutical Industry and the Generic Industries: Trends on Mergers, Acquisitions and Other Transactions, in NEGOTIATING HEALTH, supra note 83, at 65, 76.
218. See Shaffer, supra note 29. at 481.
219. See MUSUNGU ET AL., supra note 9, at 77.
220. See Peter Drahos, "Trust Me": Patent Offices in Developing Countries, 34 Am. J.L. & MED. 151 (2008).
221. See Davey, WTO Dispute Settlement System, supra note 124, at 17 ("The first half of [the first ten years of operation of the WTO dispute settlement process]-from 1995 through 1999-was characterized by extensive use of the system by the United States initially, and later by the EU.")
222. id. at 24 (noting that "the US and the EC no longer were as dominant as complainants in the system" and that "developing country use of the system increased dramatically" in the second half of the first decade of operation of the WTO dispute settlement process).
223. Shaffer, Recognizing Public Goods, supra note 29, at 477
224. see also Christina L. Davis, Do WTO Rules Create a Level Playing Field? Lessonsftom the Experience of Peru and Vietnam, in NEGOTIATING TRADE, supra note 22, at 219, 220 (arguing that "the use of legal adjudication allows developing countries to gain better outcomes in negotiations with their powerful trade partners than they could in a bilateral negotiation outside of the institution").
225. Id. at 470.
226. Panel Report, Canada-Patent Protection of Pharmaceutical Products, WT/DS114/R (Mar. 17,2000).
227. Id. 7.26.
228. Frederick M. Abbott, Bob Hudec as Chair of the Canada-Generic Pharmaceuticals Panel-The WTO Gets Something Right, 6 J. INT'L ECON. L. 733, 736 (2003).
229. See Yu, From Pirates to Partners II, supra note 49, at 939-40.
230. See Panel Report, United States-Section 110(5) of the U.S. Copyright Act, WT/DS/160/R (June 15, 2000).
231. Report of the Appellate Body, United States-Section 211 Omnibus Appropriations Act of 1998, WT/DS176/AB/R (Jan. 2, 2002).
232. See Panel Report, United States-Sections 301-310 of the Trade Act of 1974, VVT/DS152/R (Dec. 22,1999).
233. Panel Report, United States-Measures Affecting the Cross-Border Supply of G ambling and Betting Services, WT/DS285/R (Nov. 10, 2004).
234. Recourse to Arbitration by the United States Under Article 22.6 of the DSU, United States -Measures Affecting the Cross-Border Supply of Gambling and Betting Services, 3.189, WT/DS285/ARB (Dec. 21,2007).
235. Paragraph 5 of the Doha Declaration specifically recognizes the following flexibilities: A. In applying the customary rules of interpretation of public international law, each provision of the TRIPS Agreement shall be read in the light of the object and purpose of the Agreement as expressed, in particular, in its objectives and principles. b. Each member has the right to grant compulsory licences and the freedom to determine the grounds upon which such licences are granted. c. Each member has the right to determine what constitutes a national emergency or other circumstances of extreme urgency, it being understood that public health crises, including those relating to HIV/AIDS, tuberculosis, malaria and other epidemics, can represent a national emergency or other circumstances of extreme urgency. d. The effect of the provisions in the TRIPS Agreement that are relevant to the exhaustion of intellectual property rights is to leave each member free to establish its own regime for such exhaustion without challenge, subject to the MFN and national treatment provisions of Articles 3 and 4. Doha Declaration, supra note 3, 5.
236. Shaffer, Recognizing Public Goods, supra note 29, at 473.
237. See id. at 472 ("When large developed countries, such as the United States and EC, can absorb high litigation costs by dragging out a WFO case, while imposing them on developing country parties, they can enhance developing countries' incentives to settle a dispute unfavorably.").
238. See Yu, TRIPS and Its Discontents, supra note 77, at 372. For a discussion of the bargaining narrative concerning the origins of the TRIPs Agreement, see id. at 371-73.
239. Shaffer, Recognizing Public Goods, supra note 29, at 465.
240. See id. at 475 ("Because of developing countries'less frequent use of the WTO system and their lack of local legal capital, the alternative for a developing country to train internal lawyers with WFO expertise is typically worse than hiring expensive US or European outside legal counsel.").
241. See id.
242. See id. at 474.
243. See id. at 470.
244. See id.
245. William J. Davey, Dispute Settlement in GATT, 11 FORDHAM INT'L L.J. 51, 71 (1987).
246. See Yu, From Pirates to Partners II, supra note 49, at 945.
247. Davey, Dispute Settlement in GATT, supra note 206, at 90.
248. Id. at 102
249. see also Rolland, supra note 59, at 544 (noting that "one of the problems often mentioned with respect to the WTO's dispute settlement procedure is the insufficient leverage of developing countries at the enforcement level due to their limited potential for trade countermeasures against large economies").
250. See Shaffer, Recognizing Public Goods, supra note 29, at 478 ("Regional centers could create benchmarks for policy, provide a forum for the sharing of experiences, and identify best practices. Regional centers could also better coordinate training of developing country officials and non-governmental representatives.")
251. accord MUSUNGU ET AL., supra note 9, at xiv-xv (noting the need to develop mechanisms that serve "as a central feature of an institutionalized approach to regional research and innovation including essential health research and, in particular, as a focal point for training, research, information exchange and political coordination in the use of TRIPS flexibilities for public health promotion and protection";
252. NARLIKAR, supra note 77, at 206 (noting "the significance of a sustained process that allows coalition members' to meet frequently and further develop and revise their agenda").
253. Rolland, supra note 59, at 499.
254. Odell, supra note 78, at 16.
255. See id. at 501 ("A common agenda may not exist in a form strong enough to provide a platform for negotiations with third par-ties but a discussion group may help bring participants' positions closer or assist in overcoming negotiation deadlocks.").
256. NARLIKAR, supra note 77, at 14.
257. See Rolland, supra note 59, at 512.
258. Id.
259. John O. McGinnis & Mark L. Movsesian, The World Trade Constitution, 114 HARV. L. REV. 511,557 n.256 (2000).
260. See Gregory C. Shaffer, The World Trade Organization Under Challenge: Democracy and the Law and Politics of the WTO's Treatment of Trade and Environment Matters, 25 HARV. ENVTL. L. REV. 1, 62-63 (2001).
261. See NARLIKAR, supra note 77, at 15.
262. See Rolland, supra note 59, at 529 (noting that "in practice [the participation of member states in WTO working groups] would largely be constrained by the member's institutional capacity and delegation size").
263. Shaffer, Recognizing Public Goods, supra note 29, at 478.
264. Rolland, supra note 59, at 507 (footnotes omitted).
265. As the Trade Act of2002 stated: The principal negotiating objectives of the United States regarding trade-related intellectual property are ... to further promote adequate and effective protection of intellectual property rights, including through ... ensuring that the provisions of any multilateral or bilateral trade agreement governing intellectual property rights that is entered into by the United States reflect a standard of protection similar to that found in United States law .... 19 U.S.C. § 3802(b)(4)(A)(i)(11) (2004).
266. See Carlos M. Correa, Bilateralism in Intellectual Property: Defeating the WTO System for Access to Medicines, 36 CASE W. RES. J. INT'L L. 79, 93 (2004)
267. Peter K. Yu, Anticircumvention andAnti-Anticircumvention, 84 DENV. U. L. REV. 13, 41 (2006).
268. See Yu, TRIPS and Its Discontents, supra note 77, at 407.
269. Peter K. Yu, Toward a Nonzero-Sum Approach to Resolving Global Intellectual Property Disputes: What We Can Learn ftom Mediators, Business Strategists, and International Relations Theorists, 70 U. CIN. L. REV. 569, 625-26 (2002) [hereinafter Yu, Toward a Nonzero-sum Approach] (citations omitted).
270. See Panel Report, European Communities-Protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuffs, WT/DS174/R (Mar. 15, 2005).
271. See WATAL, supra note 23, at 23 (noting that the European Communities began to root for a GATT treaty "perhaps after a decision among developed countries to include the subject of geographical indications").
272. See Shaffer, Recognizing Public Goods, supra note 29, at 478.
273. Rolland, supra note 59, at 505.
274. Id. at 485.
275. NARLIKAR, supra note 77, at 122-23.
276. See id. at 128-47 (discussing the rise, success, and limitations of the Cairns Group)
277. see also Rolland, supra note 59, at 491 ("The Cairns Group gained significant weight leverage during the round, leverage which has endured because it brought together developed and developing countries that were likely to help bridge the gap between the most extreme negotiating positions.").
278. NARLIKAR, supra note 77, at 8.
279. For an explanation of the success of the coalitions less developed countries built at the Cancún Ministerial, see Amrita Narlikar & Diana Tussie, The G20 and the Cancun Ministerial: Developing Countries and Their Evolving Coalitions in the WTO, 27 WORLD ECON. 947 (2004).
280. Thanks to Robert Bird and Dan Cahoy for pushing me to focus on this important question.
281. Drahos, Developing Countries, supra note 73, at 765.
282. As Amrita Narlikar noted: [W]hile sharing of organisational resources is an asset for the weak, it is accompanied by the risk that the powerful in the group will use their organisational skills and resources to dominate the agenda and perhaps even structure the interests of the weak. Coalitions increase certainty in international affairs through reliability of allies, but also reduce the policy flexibility of countries and thereby eat into the already limited negotiating space of the weakest of developing countries. NARLIKAR, supra note 77, at 16.
283. Halbert, supra note 58, at 267.
284. Id. at 267-68.
285. I suspect, however, that these manufacturers would be unlikely to achieve as much success and influence as their patent-based counterparts in the developed world. For a discussion of why the BRICS alliances are conductive to technology transfer from the BRICS countries to other less developed countries, see supra text accompanying supra note 134.
286. Dwijen Rangnekar, Context and Ambiguity in the Making of Law: A Comment on Amending India's Patent Act, 10 J. WORLD INTELL. PROP. 365, 379-80 (2007) (quoting COMMISSION ON INTELLECTUAL PROPERTY RIGHTS, NOTES ON THE INDIA FiELD-TRIP (2001) (citation omitted)).
287. NATH, supra note 44, at 102.
288. Rolland, supra note 59, at 536.
289. See, e.g., CHINDIA: HOW CHINA AND INDIA ARE REVOLUTIONIZING GLOBAL BUSINESS (Pete Engardio ed., 2006) Ehereinafter CHINDIA]
290. RAMESH, supra note 139
291. see also DANCING WITH GIANTS, supra note 103
292. MEREDITH, supra note 106.
293. See MEREDITH, supra note 106, at 160 (citing Angus Maddison, professor emeritus at the University of Groningen)
294. see also Angus Maddison, Historical Statistics for the World Economy: 1-2003 AD (2007), www.ggdc.net/maddison/ Historical-Statistics/horizontal-file_03-2007.xls
295. BERGSTEN ET AL., supra note 138, at 18. Some early research has placed China's annual growth rate at a more modest rate of seven to eight per cent.
296. See Symposium, China and the WTO, supra note 45, at 3.
297. BERGSTEN ET AL., supra note 138, at 73.
298. See id. at 4.
299. Wilson & Purushothaman, supra note 13, at 4.
300. See Daniel C.K. Chow, Why China Does Not Take Commercial Piracy Seriously, 32 OHIO N.U. L. REV. 203, 208 (2006) ("China's ambitions are vast: China seeks to maintain its dominance in labor-intensive sectors, to gain and maintain dominance in low-technology sectors, and to eventually dominate trade in high-technology sectors.")
301. Pete Engardio, Introduction to CHINDIA, supra note 245, at 4 "(noting that "[t]he idea that China will continue to assemble low-end products while high-end manufacturing will always remain in advanced countries ... is becoming outdated")
302. its own national champion automaker").
303. Wilson & Purushothaman, supra note 13, at 4.
304. Id. at 10.
305. See Pete Engardio, Why India May Be Destined to Overtake China, in CHINDIA, supra note 245, at 27
306. see also MEREDITH, supra note 106, at 57 ("China is winning the sprint, and [India is] going to win the marathon." (quoting Kamal Nath, India's minister of commerce and industry)).
307. But see id. at 154 ("China has proved so much more efficient than India at development and managing its economy that th[e] scenario [that India's economy will overtake China's] is unlikely unless China falls into political turmoil.").
308. Yasheng Huang & Tarun Kbanna, Can India Overtake China?, FOREIGN POVY, July/Aug. 2003, at 74, 81.
309. "IP-irrelevant factors" are those factors that are largely unaffected by intellectual property protection. See Yu, The International Encolosure Movement, supra note 7, at 852-53.
310. Cf. Rolland, supra note 59, at 524 (suggesting the development of the following geographical-based groups: "A bloc including the Americas, an African bloc, two Asian groups (one including China and Eastern Asian countries and the other one comprising South Asian and Central Asian countries), and a Middle Eastern bloc, and possibly a bloc of industrialized members and an LDC bloc").
311. Yu, Toward a Nonzero-sum Approach, supra note 226, at 599 (footnotes omitted).