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IMPORT EXPORT DOCUMENTATION. Report on: TRIPS and TRIMS AGREEMENTS OF WTO
Part II contains the following standards: 1) Patents shall be granted for any inventions. provided they are new. No discrimination is allowed with respect to the place of invention. XXI & XXII & the WTO dispute settlement understanding). & are capable of industrial application. or mathematical concepts as such. procedures. 2) TRIPS Agreement: Main Provisions on Copyright 1) Protection of works covered by the Berne Convention. TRIPS Agreement: Main Provisions on Patents Section 5. excluding moral rights to the expression but not the ideas. or based on whether the products are locally-produced or imported. 2) Protection of computer programs as literary works & of compilations of data. The TRIPS Agreement establishes enforceable minimum standards for the protection & enforcement of IPR by WTO Members. TRIPS Agreement is the most comprehensive international agreement on intellectual property rights & the only one actually enforceable (under GATT Arts.WTO TRIPS Agreement The Uruguay Round TRIPS Agreement is one of four new agreements negotiated during the UR Round that deal with a substantive area totally new & not previously governed by any part of the GATT’47 (the others being Agriculture. Patents shall be granted in all fields of technology. whether products or processes. The TRIPS Agreement provides a transitional period for developing Members until 01 January 2005 and for “least-developed” Members of 11 years from date of entry into effect of the WTO (until 01 January 2006) for implementation of the TRIPS Agreement. . (Extended since to 2016). & Trade-Related Investment Measures (TRIMS)). methods of operation. involve an inventive step. Services. It incorporates by reference a number of other essentially unenforceable international agreements or conventions on aspects of IPR.
. 2) Secret data submitted for the approval of new chemical entities for pharmaceutical & agrochemical products should be protected against unfair commercial use & disclosure by governments. Service marks receive protection equivalent to that for marks for goods. or * any use that constitutes an act of unfair competition within the meaning of Paris Convention of 1967. 2) Registrability. & is subject to steps to keep it secret. e. if the information is secret. but not filing of an application. TRIPS Agreement: Provisions for Geographical Indications 1) WTO Members are obligated under TRIPS Art. those capable of distinguishing the goods or services of one undertaking from those of other under-takings. can be dependent on use. TRIPS Agreement: Provisions on Industrial Designs 1) Protection should be conferred on designs which are new or original.g. including importation. TRIPS Agreement: Provisions for Trade Secrets 1)Undisclosed information is to be protected against unfair commercial practices. 4) The minimum term of protection is 10 years.. 2) Requirements for protection of textile designs should not impair the opportunity to obtain such protection.TRIPS Agreement: Provisions on Trademarks 1) Definition of protected signs.2 to provide legal means for interested parties to prevent: * use of any means in the designation or presentation of a good that indicates or suggests that the good in question originates in a geographical area other than the true place of origin in a manner that misleads the public as to its true origin. has commercial value. 22. 3) Exclusive rights can be exercised against acts for commercial purposes.
2) Members are also required to refuse or invalidate registration of a TM that contains or consists of a geographical indication with respect to goods not originating in the territory indicated.U. • Two basic issues were encountered: . . Draft Code of Conduct on Transnational Corporations opposed by developed nations went nowhere.A. resolution on Permanent Sovereignty over Natural Resources (1962) & Charter of Economic Rights & Duties of States (1974) foundered.OECD Declaration & Decisions on International Investment & Multinational Enterprises & its Codes on Liberalization of Current Invisible Operations & Capital Movements. likewise found little support beyond developed nations. • During preparatory process for the GATT Uruguay Round. there were several efforts to develop a multilateral.seek to increase disciplines over national investment measures that divert trade flows at expense of other GATT parties .explore a broad range of investment issues including National & MFN treatment & right of establishment . proposed that the multilateral trade negotiations should: .S. U.examine various types of trade-related investment measures which are inconsistent with GATT trade provisions.Efforts after WWII including investment-related provisions of the Havana Charter for an International Trade Organization found no agreement & was never ratified. enforceable Code of Conduct Regulating Cross-Border Investment: .N. if it would mislead the public as to the true place of origin. . WTO TRIMS Agreement History of TRIMS Agreement • Prior to the GATT Uruguay Round.U. .N.
. requires the elimination or dismantling of) FDI-related measures as conditions for either: .whether some or all actionable trade-related investment measures should be prohibited outright or dealt with on a case-bycase basis demonstration of direct & significant restrictions & their adverse effects on trade – e. • The TRIMS Agreement does not regulate FDI as such but only addresses measures resulting in discriminatory treatment of imports & exports by foreign firms of other WTO Members...Ancient Maxim: Investment follows trade & trade follows investment – they are inextricably interrelated in modern business. via dispute settlement What’s the problem? .g. Note: FDI is generally defined (by the IMF.g. • The General Agreement on Trade in Services (GATS) and the Agreement on Trade-Related Intellectual Property Rights (TRIPS) contain limited provisions relating to investment in those areas.. OECD. • The UR Agreement on Trade-Related Investment Measures (TRIMS) is a very limited effort to achieve multilateral disciplines on investment regulation but only to the extent it directly relates to GATT/WTO trade rules & principles & doesn’t act to restrict international trade in Goods.This interrelationship raises 2 issues: > Trade restrictions can hinder Foreign Direct Investment (FDI) & > Investment regulations can hinder Trade. “Investment” (for purposes of TRIMS) is not defined as such but relates generally in the context of the TRIMS to Foreign Direct Investment (FDI). others) as “ownership by a foreign firm or individual of 10% or more of the shares or voting power of an incorporated entity or the right to 10% or more of the profits of an unincorporated entity. • • • The TRIMS Agreement essentially forbids (e.should disciplines in this area be limited by existing GATT rules or expanded to develop a multilateral investment regime? & .
III. TRIMS: Basic Substantive Obligations (2): • Members must notify to the WTO any investment measure that is inconsistent with the GATT (Arts.qualification for FDI incentives by a WTO Member TRIMS: Basic Substantive Obligations: • No WTO Member may apply an investment-related measure that is prohibited by or inconsistent with the provisions of: .Trade Balancing measures. XI (Prohibition of quantitative restrictions on imports or exports) except as permitted under provisions of the TRIMS Agreement. • Members must eliminate any TRIM that is inconsistent with Arts. upon request. they include: . III (National Treatment of imported products) or . note: the WTO Council for Trade-in-Goods may.admission or treatment of FDI in a WTO Member ..GATT Art. extend the transition period for developing or LDC countries subject to conditions imposed on them • . III. 5 years for developing countries. XI on a schedule of 2 years from entry into effect of the WTO for developed countries. & 7 years for least-developed ones. XI). • “Trade Balancing” measures are measures requiring an investor to use earnings from its exports to pay for imported inputs or other imports. • “Local Content” measures are measures setting out minimum levels of locally-made components that must be incorporated in goods or services produced domestically.GATT Art.Local Content measures . But. generally. • An Illustrative list of prohibited TRIMS is annexed to the TRIMS Agreement. But.
- The Agreement allows developing countries to deviate temporarily from TRIMS requirements as permitted under GATT Art.The TRIMS Agreement requires Members to notify to the WTO Secretariat lists of publications in which their TRIMS may be found.The TRIMS Agreement established the WTO Committee on TradeRelated Investment Measures to review notifications & serve as a forum to examine Member implementation of the Agreement.Developing Members that can demonstrate particular difficulties in implementing the provisions of the TRIMS Agreement may request extension of the transition period from the Council on Goods. . III. their inconsistency with GATT Arts. * Members may not institute any new TRIMS or amend any existing measures that would result in. More than 30 Members have requested such an extension. • TRIMS: Transparency Provisions: . note.• Also. XVIII & related WTO provisions authorizing safeguards for balance of payments purposes. TRIMS: Basic Substantive Obligations (3): • Special & Differential Treatment: . XI (“Standstill” Clause). that Viet Nam may be required to eliminate any TRIMS sooner by reason of requirements imposed under its bilateral WTO accession agreements. or increase. Illustrative List of TRIMS: • Local Content – impose some certain amount or value of domestic inputs • Trade Balancing – volume or value of imports tied to levels of exports • Foreign Exchange Balancing – requires that foreign exchange made available for imports must be a certain proportion of the value of foreign exchange realized from exports Foreign Exchange Restrictions – restricts access to foreign exchange in order to constrain the volume of imported inputs • .
Under GATS. .• Manufacturing Requirements – requires certain products to be produced locally Manufacturing Limitations – prevents firms from manufacturing certain products or product lines in the host country Technology Transfer – requires specified technology to be transferred to host country for use locally or certain types of R&D to be conducted locally Licensing of Technology – requires investor to license technology for use in the host country • • • Illustrative List of TRIMS (2): • Domestic Sales – requires an investor to sell a certain proportion of its output in the host country Export Performance – requires that a minimum proportion or value of production in host country be exported • • Export Controls – certain products may not be exported • Product Mandating – requires investor to supply certain markets with designated products or products manufactured in a specified facility or operation or some products may be exported only from host country Remittance Restrictions – restricts the right of the investor to repatriate returns from its investment Local Equity – requires that a certain percentage of a firm’s equity must be held by local investors in the host country. Market Reserve Policy – some markets reserved for local production • • • Other GATT/WTO Agreements Re: TRIMS General Agreement on Trade in Services (GATS): . . Mode 3 of which is “supply of services through commercial presence in the territory of another Member”. trade in services is defined by 4 modes of supply.The TRIMS Agreement applies only to trade in goods.
financial or indirect investment incentives designed to attract FDI could fall under the definition of “Subsidy” under the SCM Agreement. Other GATT/WTO Agreements Re: TRIMS (2) • Agreement on Trade-Related Intellectual Property (TRIPS): . as to whether a TRIMs requiring transfer of IP-protected technology or use of such technology in the host country as a condition for admission of investment or incentives could be held to violate the TRIPS Agreement as well as the TRIMS Agreement. They are prohibited if granted contingent upon exportation of goods by the investor or use of domestic over imported goods.This raises a question. . the GATS defines national treatment as an obligation that relates only to a Member’s scheduled service commitments & not as a principle of general application. it does address the terms & conditions upon which an investor may establish itself through “commercial presence”. • Subsidies & Countervailing Measures Agreement (SCM) . violate the SCM Agreement as well as the TRIMS Agreement. . etc. . e. and could. . tax credits. therefore. for example.Although the TRIPS Agreement does not govern FDI directly.So. export-related incentives.Although GATS is not an investment agreement as such. . it has provisions establishing standards for protection & enforcement of IP rights. the GATS provides for national treatment to be granted only partially (in those Services sectors or sub-sectors it permits foreigners to participate in) or subject to specified conditions on their participation.With regard to “establishment”.g.Certain fiscal.the working definition of “investment” or “foreign direct investment” (FDI) in many inter-governmental investment agreements includes Intellectual Property...
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