Message relatif à l’Accord de libre-échange entre la Suisse et la Chine et l’Accord sur la coopération en matière de travail et d’emploi entre la Suisse et la Chine, Feuille Fédérale 2013 p. 8165-8216 (excerpts).
(DE) Bundesblatt 2013 p. 8165 – 8216
(FR) Feuille Fédérale 2013 p. 8165 – 8216
Background
Switzerland was the first country to recognize the Peoples’ Republic of China in 1949. Swiss companies − Schindler Elevators in particular − were among the first to enter the Chinese market under joint venture agreements of the Communist era. Switzerland thus benefitted from considerable goodwill in China. Upon the entry of China to the WTO, efforts to conclude a free trade agreement were of mutual interest. Switzerland sought to consolidate market access rights in a system of state capitalism. China was interested in obtaining a foothold in Europe, pursuing a similar policy as with New Zealand and Australia in the Pacific. The Free Trade Agreement concluded in 2012 outside the framework of EFTA includes an important chapter on intellectual property rights that builds upon the TRIPS Agreement. Excellent relations between Swiss negotiator Felix Addor, Deputy-Director General, and his counterparts at MOFTEC allowed for an interactive process in which trust was built at a time when negotiations with China were generally difficult to undertake. Addor’s academic interest in international negotiations, which he taught at the University of Berne and the World Trade Institute, contributed to this success. The Chapter on Intellectual Property is a landmark document for so called “TRIPS Plus” obligations. Following the US example of the Central America Free Trade Agreement, it was the first European Agreement complementing the TRIPS agreement, addressing some of its lacunae.It was to inform and inspire subsequent free trade agreements concluded by Switzerland and others, serving as a benchmark.
Summary
International negotiations take place on the basis of a mandate by the Federal Government. Results are reported to Parliament in what is called a “message” published in German, French and Italian. This text provides excerpts of the report to Parliament and the public at large on the Swiss-China Free Trade Agreement. The paper elucidates the background of the negotiations, noting that China is the Switzerland’s third-largest trading partner. It provides an overview of the negotiations starting in 2007, and of the topics listed in the table of contents. In addition to chapters on institutions and dispute settlement, goods and services, safeguards, transparency in government procurement, chapter 11 of the agreement addresses the protection of foreign direct investment, environmental concerns, technical cooperation and intellectual property.
The chapter reiterates compliance with existing international agreements including particularly the TRIPS Agreement, which represents the main foundation upon which the chapter rests. It extends protection to sound marks as an additional obligation. Exceptions to patent protection are linked to standards of the European Patent Convention. Parties are allowed to request the indication of source for patents in genetic engineering, and of traditional knowledge used in a patent. The provisions require parties to adhere to UPOV 1978 and protect test data for pharmaceuticals and chemical products for a minimum period of six years. Protection for industrial designs is extended to 25 years. Importantly, qualified levels of protection of geographical indications for wines and spirits under the TRIPS Agreement are extended to all products. For enforcement, parties are obliged to allow inspection of widgets at the border. Finally, a specific provision is included protecting the word “Switzerland” as a denomination which is barred from use for commercial purposes.