Thomas Cottier, ‘Working together towards TRIPS’, in: Watal, Jayashree / Taubman, Antony (eds.), The Making of the TRIPS Agreement – Personal insights from the Uruguay Round negotiations 79-94 (Geneva: WTO 2015).
Thomas Cottier – Working together towards TRIPS
Thu-Lang Tran Wasescha, ‘Negotiating for Switzerland’, in: Watal, Jayashree / Taubman, Antony (eds.), The Making of the TRIPS Agreement – Personal insights from the Uruguay Round negotiations 159-186 (Geneva: WTO 2015).
Thu-Lang Tran Wasescha – Negotiating for Switzerland
Background
Repeated failures to revise the Paris and Berne Conventions in the WIPO led to the inclusion of intellectual property in the Uruguay Round of the GATT (1986-1994). This led to a process of moving intellectual property into both multilateral and bilateral trade agreements. Initially focusing on combatting counterfeiting and piracy, the agenda gradually extended to include relatively high substantive standards in all fields of intellectual property and beyond, including new disciplines on patents, software protection, integrated circuits and trade secrets. The TRIPS Agreement incorporates the substantive provisions of the Paris and Berne Conventions, which thereby become part of WTO law and are subject to its dispute settlement system and legal enforcement by way of the withdrawing of trade concessions and benefits from parties that ignore the law. The TRIPS Agreement complements the Paris and Berne Conventions, also referring to the Rome Convention and the Washington Agreement on Integrated Circuits (not as such in force), adding new disciplines in all fields of intellectual property law. Of particular importance are the provisions applying copyright to software products, thus moving copyright very close to industrial protection. The Agreement introduced the protection of undisclosed information and trade secrets and a basic obligation to provide patent protection for pharmaceuticals and chemicals, subject to a number of exceptions. Articles 7 and 8 set forth general principles reserving the right of members to pursue public policy interests and restrict the use of intellectual property rights. These principles are specified in provisions relating to compulsory licensing, which eventually were amended in response to the HIV pandemic in an effort to improve access by developing countries to essential medicines. Importantly, the Agreement introduced a substantial chapter on the enforcement of intellectual property rights by means of civil, administrative and penal provisions. It amounts to an amalgamation of the US and European legal traditions, and represents the first-ever effort undertaken to harmonize procedural law in the field.
From the outset, Switzerland played an active role in discussion and debate, submitting a comprehensive proposal for the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS) that influenced the outcome of negotiations, alongside comprehensive proposals submitted by the US, the EU and a group of developing countries. Given the Swiss interests, particular emphasis was placed on extending patent protection to pharmaceutical and chemical products and bringing about basic disciplines on undisclosed information. Ingo Meitinger, a promising young scholar who passed away far too early, analyzed this effort and the scope of protection in his seminal Ph.D. dissertation entitled Der Schutz von Geschäftsgeheimnissen im globalen und regionalen Wirtschaftsrecht: Stand und mögliche Entwicklungen der Rechtsharmonisierung (Berne: Lang 2000).
Dealing with intellectual property standards in the GATT was somewhat different from work in the WIPO, as trade-offs were indirectly and politically made with other areas, particularly agriculture and textiles. These were addressed by trade diplomats and trade lawyers as one of many issues including tariff reductions, technical trade barriers, phytosanitary standards, government procurement and the emergent topic of trade in services. Most importantly, however, these negotiations took place in the context of the ending of the Cold War and the fall of the Berlin Wall in 1989. Geopolitical changes transformed long-standing resistance to intellectual property standards in developing countries. Yet the TRIPS Agreement also came as the fruit of careful preparation and negotiations in Geneva and state capitals. Of foremost importance is that it was possible to create a congenial negotiating group that interacted well on an interpersonal level. The Federal Office of Foreign Trade (BAWI), Federal Office of Intellectual Property (BAGE) and Federal Customs Administration worked closely together, in consultation with industry associations as well. Two papers by Swiss negotiators, written on the occasion of the 20th anniversary of the Agreement in 2015, recall this period of intensive work and creative progress. Tribute is paid therein to the late Ambassador Luzius Wasescha, who masterminded interaction in Geneva on the topic and greatly supported the negotiators. Switzerland at that time played an important role in bringing together like-minded countries to form coalitions while working closely together with the US and EU as well, doing its best to moving negotiations forward to successful conclusion in late 1993.
Summary
The two papers offer an account and discussion of the process of diplomacy and of the genesis of different features of the TRIPS Agreement from a Swiss perspective. Thomas Cottier recalls the impasse or dialogue des sourds between industrialized and developing countries obstructing the outset of the negotiations, which however gradually came to engage in a learning process, build mutual trust and eventually design and negotiate the building blocks of an ambitious agreement. Understanding the domestic needs of partners is an essential prerequisite that must not be ignored when defending national interests in the field. The paper gives an account of the different stages of the negotiating process, including domestic consultations and the roles of private lobbies and international non-governmental organizations. The paper by Thu-Lang Tran Wasescha more specifically relates to the interests and positions of Switzerland in different regulatory fields, from patents to copyright, trademarks and geographical indications. It illuminates internal processes of inter-agency consultations and important pre-emptive effects of the legislative and treaty referendum on negotiations − perhaps unique to Switzerland and its legal culture. Both papers stress the importance of building trust and of transparency, both of which lay the foundations for success in international negotiations well beyond the field of intellectual property.