1. Table of Contents 1.Introduction 2.Basic Principles – GATT 3.GATS 4.TRIPS

2. 3GATS 3.1Introduction Achievement of the Uruguay Round: entered into force in January 1995) High degree of flexibility, i.e. fewer “hard” obligations than in the GATT: –liberalisation by sector –it is permitted to suspend the application of MFN Inspired by principally the same objectives as the GATT: –credible and reliable system of international trade rules –ensuring fair and equitable treatment of all participants (principle of non-discrimination) –stimulating economic activity through guaranteed policy bindings –promoting trade and development through progressive liberalisation

3. 3GATS 3.2Main Features Service: very wide definition; no clear normative guidance –“Services include any service in any sector except services supplied in the exercise of governmental authority.” –Services sectoral classification list –Unilateral sector-specific commitments (schedules to the GATS) Progressive liberalisation envisaged by adding services sectors Participation of DC´s encouraged Few general exceptions, most notably regarding air transpor- tation services and governmental services

4. 3GATS 3.3Modes of Supply (Art 1 GATS) Art 1 (1) GATS: Measures affecting trade in services – threshold issue for the applicability of the whole agreement Art 1 (2) GATS – modes of supply of services: –Mode 1: neither service supplier nor service consumer has to move –Mode 2: consumer goes to another country where the service is supplied –Mode 3: service supplier establishes commercial presence in another country in order to supply the service there –Mode 4: individual (natural person) is established temporarily in another country

5. 3GATS 3.4Right to Regulate – Art 6 GATS WTO members have the right to –regulate to meet national policy objectives –introduce new regulations Problem: –Services are only rarely subject to explicit barriers (no tariffs etc.) –Nonetheless, services are often subject to regulatory barriers, e.g., for the protection of the public (education requirements for phy- sicians, accountants etc.) or other legitimate public policy reason –Alibi for protectionism? Regulation can be an inadequate barrier if it is discriminatory, non-transparent and/or too burdensome/restrictive for both, foreign and domestic suppliers

6. 3GATS 3.5MFN and the GATS Art 2 (1) GATS: in parallel with the GATT the GATS imposes on WTO members the obligation –to accord unconditionally and automatically –to any other member –treatment no less favourable than the treatment they accord to like services/service suppliers from any other country –whether the country is a WTO member or not

7. 3GATS 3.6Exceptions to MFN Exemptions for political reasons if members file(d) a list of exemptions in due time, i.e. deviations allowed when stipulated before the agreement entered into force, Art 2 (2) GATS Measures inconsistent with the MFN obligation can be maintained: –in principle for not more than ten years –Such measures to be specified in a list -> list of exceptions integral part of the GATS General deviations allowed on legal grounds – justified when compliant with the statutory requirements (Art 14, 14bis GATS) Regional integration agreements in Art 5 GATS: deviation from the MFN (preferential treatment among the FTA´s members)

8. 3GATS 3.7Specific Commitments Schedules of specific commitments –concern both market access and NT –Members are free to shape the sector coverage and substantive content of their commitments Specific commitments usually reflect national policy objectives as well as constraints Some Members have scheduled very few services, others have assumed market access and national treatment in 3/4 out of a total of ca 160 services

9. 3GATS 3.8Banana Wars revisited 1.Does the GATS apply to the EC’s (now: EU´s) import licensing procedures? Are the GATT and GATS mutually exclusive? 2.Are operators engaged in the wholesale distribution of bananas service suppliers? 3.Are operators in an integrated company to be treated as service suppliers? 4.Did the EU open up its services market for wholesale trade service providers from non-EU member states?

10. Table of Contents 1.Introduction 2.Basic Principles – GATT 3.GATS 4.TRIPS

11. 4TRIPS 4.1Intellectual Property (IP) and Trade Widespread piracy, counterfeiting and infringement of IP rights constitute a barrier to trade Availability of such goods diminishes market access for legitimately produced and traded goods (especially for developed countries) Rights transfer agreements (Licensing): National legislation sometimes impedes/impeded trade by regulating such agreements: –Notification requirements –Requiring registration and approval

12. 4TRIPS 4.2Why a WTO-Agreement regarding IP? IP protection increasingly important on an international level IP enforcement restricted to national territories: In principle, no extraterritorial enforcement of IP laws TRIPS important for four reasons: –International legal standards for national IP laws –Minimum international criteria for national enforcement of IP rights through civil, criminal, and administrative proceedings –TRIPS subjects national IP standards and enforcement to the WTO dispute settlement system –Common procedural requirements TRIPS does not unify IP law, but it stipulates a global harmoni- sation in most areas

13. 4TRIPS 4.3Provisions Relating to DCs/LDCs TRIPS makes few concessions to developing countries Transitional period regarding pharmaceuticals (patents) for LDC´s until 2016 Developed countries obligated to provide –Incentives for transfer of technology to LDCs –Technical assistance and financial help to developing countries in preparing laws and regulations on the protection and enforcement of IP rights

14. 4TRIPS 4.4The Subject Matter: „Intellectual Property (IP)“ Legal protection given to certain emanations/manifestations of the human mind Legal right given to creators/inventors to exclude others of using the IP for a certain period of time (‘monopolisation’) Protection given to intangible industrial property predominantly concerns –Patents, protection given to inventions –Trademarks, protection given to distinctive signs Protection given to literary/dramatic, artistic etc. works: –Copyright –Related rights

15. 4TRIPS 4.5Seven Categories of IP Copyright and related rights, Art. 9-14 TRIPS Patents, Art. 27-24 TRIPS Trademarks and service marks, Art. 15-21 TRIPS Geographical indications, Art. 22-24 TRIPS Undisclosed information and trade secrets, Art. 39 TRIPS Industrial designs, Art. 25, 26 TRIPS Layout designs of integrated circuits, Art. 35-38 TRIPS

16. 4TRIPS 4.6Minimum Level of Protection, Art. 9-39 TRIPS WTO members must generally accord both national treatment and most-favoured-nation treatment in connection with the acquisition, maintenance, and enforcement of IP rights Individuals and enterprises Examples: –Copyright terms must extend to 50 years after the death of the author, (films: 50; photographs: 25 years) –Copyright must be granted automatically, and not based upon any "formality„ (e.g. registrations, renewal procedures) –Computer programs must be regarded as "literary works" under copyright law and the same conditions must apply –Exceptions to copyright ("fair use“) to be tightly constrained

17. 4TRIPS 4.7Standards of Enforcement, Art. 41-61 TRIPS TRIPS sets out standards of enforcement of IP rights by foreign rights holders as well as national rights holders Enforcement must be effective, fair and equitable Civil and administrative enforcement procedures must conform to certain standards regarding matters such as –Conformity to certain standards such as evidence/proof –Due process of law –Full range of remedies including injunctions and damages Members must –adopt border procedures that allow IP rights holder to block the import of infringing goods –provide appropriate criminal penalties for wilful violators of IP rights There must be judicial review of final administrative decisions

18. 4TRIPS 4.8Border Measures TRIPS permits members to exclude imports that infringe intellectual property rights Members must adopt procedures with regard to trademark rights and copyrights whereby –A party can petition (apply for) an administrative or judicial body for an injunction preventing an importation when it reasonably suspects that a product that infringes a trademark or copyright is being imported –Rationale: infringements of copyrights and trademarks are clear on the surface, whereas patent infringements can only be determined after detailed examination of the matter Claimant has burden of proof that imported article infringes IP rights

19. 4TRIPS 4.9Public Policy Criticism Does TRIPS allow “reverse piracy”, i.e., the appropriation by transnational companies in rich countries of valuable “traditional knowledge” and cultural works? Does TRIPS exacerbate the divide between rich and poor countries by forcing poor DCs and LDCs to protect IP against their fundamental self-interest in order to serve the welfare of transnational businesses based in rich countries? Does TRIPS endanger human health and food production in poor countries by monopolising essential medicines, plants, seeds, etc.?