Ghana TRIPS Over the TRIPS Agreement on Plant Breeders' Rights

This document is the Accepted Manuscript version of the following article: Thaddeus Manu, 'Ghana Trips Over the TRIPS Agreement on Plant Breeders' Rights', African Journal of Legal Studies, Vol 9 (1): 20-45, July 2017. Under embargo. Embargo end date: 31 July 2019. The final, published version is available online at doi: https://doi.org/10.1163/17087384-12342070. Published by BRILL.The premise under which the global IP system is validated has often focused on a traditional materialistic approach. While this seems to find legitimate support in economic reasoning, such a fundamental view also appears to contradict a related social norm claim which dictates that society ought to be shaped by appropriate values rather than economic rubrics. Although Ghana is not a signatory member of the UPOV Convention, there is explicit evidence that the PBRs Bill under consideration in Parliament contains provisions modelled on the UPOV Act 1991 rather than the potentially flexible and “effective sui generis system” in TRIPS. This paper aims to contribute to a recently active area of discussion on the topic by examining the consequences of stringent legislation on PBRs in the absence of adequate safeguard measures to protect public interests. Consequently, the hypothesis of this paper rests on the argument that every system needs checks and balances and the legislative system is no exception; therefore, social policy matters must be integrated into the so-called PBRs Bill in order not to undervalue public interests. To conclude, the author presents an argument based on a logical balance that ought to be found on the path to promulgating such legislation.Peer reviewe

World Trade Organization (WTO): Issues in the Debate on Continued U.S. Participation

[Excerpt] Following World War II, the United States led efforts to establish an open and nondiscriminatory trading system with the expressed goal of raising the economic well-being of all countries and bolstering world peace. These efforts culminated in the creation of the General Agreement on Tariffs and Trade (GATT) in 1948, a provisional agreement on tariffs and trade rules that governed world trade for 47 years. The World Trade Organization (WTO) succeeded the GATT in 1995 and today serves as a permanent body that administers the rules and agreements negotiated and signed by 153 participating parties, as well as a forum for dispute settlement and negotiations. Section 125 of the Uruguay Round Agreements (P.L. 103-465), which is the law that approved and implemented the agreements reached during the Uruguay Round of multilateral trade negotiations, provided that the U.S. Trade Representative (USTR) must submit to Congress every five years a report that analyzes the costs and benefits of continued U.S. participation in the WTO. The USTR submitted its report to Congress on March 1, 2010, triggering a 90 legislative day timetable in which any Member of Congress may introduce a privileged joint resolution withdrawing congressional approval of the WTO Agreement (to date no withdrawal resolution has been introduced in the 111th Congress). Most observers maintain that U.S. withdrawal from the WTO is at best highly unlikely for both substantive and procedural reasons. Substantively, the withdrawal of U.S. participation could undermine a multilateral system of trade rules and practices, formulated and implemented under U.S. leadership, that on balance has contributed to increased economic prosperity and security at home and abroad. Procedurally, a withdrawal resolution would have to pass both the House and Senate and then surmount a likely Presidential veto via an override with a two-thirds majority vote. Nevertheless, such a resolution provides an opportunity for Members of Congress periodically to debate “whether the WTO is an effective organization” and ways it could better serve U.S. interests. The purpose of this report is to analyze some of the main issues in any debate on U.S. participation in the WTO and to address some of the criticisms leveled at the organization. Academic studies indicate that the United States benefits from broad reductions in trade barriers worldwide, but some workers and industries might not share in those gains. Decisions in the WTO are made by member governments, which determine their negotiating positions, file dispute challenges, and implement their decisions. However, some argue that smaller countries are left out of decision-making and that governments tend to represent the interests of large corporations disproportionately. The United States has been a frequent participant in WTO dispute proceedings, both as a complainant and as a respondent. There have been complaints that countries do not adhere to decisions and that U.S. trade remedy laws have not been judged properly. It is also argued that this multilateral dispute settlement process is unique and that the United States has successfully used the process to advance its economic interests. Certain advocates for the environment, food safety, labor, development, and financial regulation have criticized the WTO. Much of the criticism is based on interpretations of various WTO agreements or rulings that have been controversial. An appendix sets out the legislative procedures for the WTO withdrawal resolution. This report will be updated as events warrant

Power and the Global Governance of Plant Genetic Resources

This thesis explores the location and nature of the power that is deepening and broadening the revolution in modern biotechnologies, and which is inherent in the global governance of one type of genetic resource — plant genetic resources. Plant genetic resources are of increasing importance within the global political economy and ecology because of the power/knowledge networks contributing to, and responding to developments in the biotechnology sector, and concerned with the rampant erosion of biological diversity. The thesis argues that transnational norms, values and knowledge are important aspects of power. Discursive power, and particularly the power inherent in discourses of sustainable development, security and human rights, are a central focus of the thesis. The thesis challenges realist, neo-realist and other structural analyses of power which focus on relative distributions of power at the level of individual states or at the global level

The Proposed U.S.-Colombia Free Trade Agreement

[Excerpt] The proposed U.S.-Colombia Trade Promotion Agreement, also called the U.S.-Colombia Free Trade Agreement (CFTA), was signed by the United States and Colombia on November 22, 2006. The agreement must be approved by Congress before it can enter into force. Upon congressional approval, it would immediately eliminate duties on 80% of U.S. exports of consumer and industrial products to Colombia. An additional 7% of U.S. exports would receive duty-free treatment within five years of implementation, and most remaining tariffs would be eliminated within 10 years of implementation. The agreement also contains other provisions in services, investment, intellectual property rights protection, labor, and the environment. About 90% of U.S. imports from Colombia enter the United States duty-free under trade preference programs or through normal trade relations, while U.S. exports to Colombia face duties of up to 20%. It is possible that the 112th may consider implementing legislation for the proposed CFTA. Negotiations for the agreement were conducted under the trade promotion authority (TPA), also called fast-track trade authority, that Congress granted the President under the Bipartisan Trade Promotion Act of 2002 (P.L. 107-210). The authority allowed the President to enter into trade agreements that would receive expedited congressional consideration (no amendments and limited debate). Implementing legislation for the CFTA (H.R. 5724/S. 2830) was introduced in the 110th Congress on April 8, 2008, under TPA. The House leadership, however, took the position that the President had submitted the implementing legislation without adequately fulfilling the TPA requirement for consultation with Congress. On April 10, 2008, the House voted 224-195 to make the provisions establishing expedited procedures, inapplicable to the CFTA implementing legislation (H.Res. 1092). In his January 2011 State of the Union address, President Barack Obama mentioned the importance of opening foreign markets for U.S. goods and services, and strengthening U.S. trade relations with Colombia. In 2010, the Administration initiated a new National Export Initiative (NEI), which includes a component that calls for opening new markets for U.S. exports by resolving outstanding issues on the pending CFTA. The Obama Administration also has made a case for pursuing free trade agreements as part of the National Security Strategy of the United States, though the CFTA is not specifically mentioned in the report. The congressional debate surrounding the agreement has mostly centered on the violence issues in Colombia. Some members of Congress oppose the agreement because of concerns about violence against union members and other terrorist activity in Colombia. However, numerous members of Congress support the CFTA and take issue with these charges, stating that Colombia has made progress in recent years to curb the violence in the country. They also contend that the agreement would open the Colombian market for U.S. exporters. Other policymakers argue that Colombia is a crucial ally of the United States in Latin America and that if the trade agreement is not passed, it may lead to further violence in the region. For Colombia, a free trade agreement with the United States is part of its overall economic development strategy. The United States is Colombia’s leading trade partner. Colombia accounts for a very small percentage of U.S. trade (0.8% in 2009), ranking 22nd among U.S. export markets and 27th as a source of U.S. imports. Economic studies on the impact of a U.S.-Colombia free trade agreement (FTA) have found that, upon full implementation of an agreement, the impact on the United States would be positive but very small due to the small size of the Colombian economy when compared to that of the United States (about 1.6%)

Innovation, Intellectual Property, and Development: A Better Set of Approaches for the 21st Century

This paper aims to provide an intellectual basis to think about the relationship between development, intellectual property and innovation; where we currently are and what alternatives are available. For the most part, we are concerned less with the implications of current IP laws for the advanced countries as we are with their impact on developing countries. We focus here not only on the current pathologies of the system and on potential alternative ways to tackle its most egregious excesses; but on a more positive note, on what kind of "system" would best promote development and well-being in the developing world. We are looking for a world with new and better rules for intellectual property. Just as some have begun to think about re-writing the rules of the American economy to ensure a more just and efficient system, the time is ripe for doing the same for the global economy, especially with regard to the IP system

Dispute Settlement in the World Trade Organization (WTO): An Overview

[Excerpt] Dispute settlement in the World Trade Organization (WTO) is carried out under the WTO Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU). In effect since January 1995, the DSU provides for consultations between disputing parties, panels and appeals, and possible retaliation if a defending party fails to comply with a WTO decision by an established deadline. Automatic establishment of panels, adoption of panel and appellate reports, and authorization of requests to retaliate, along with deadlines and improved multilateral oversight of compliance, are aimed at producing a more expeditious and effective system than had existed under the General Agreement on Tariffs and Trade (GATT). To date, 405 complaints have been filed, approximately half involving the United States as complainant or defendant. Expressing dissatisfaction with WTO dispute settlement results in the trade remedy area, Congress, in the Trade Act of 2002, directed the executive branch to address dispute settlement in WTO negotiations. WTO Members have been negotiating DSU revisions in the currently stalled Doha Development Round of trade negotiations but no final agreement on the DSU has been reached. Use of the DSU has revealed procedural gaps, particularly affecting the compliance phase of a dispute. These include a failure to coordinate procedures for requesting retaliation with procedures for tasking a WTO panel with determining whether a defending Member has complied in a case and the absence of a procedure for withdrawing trade sanctions imposed by a complaining Member where the defending Member believes it has fulfilled its WTO obligations. As a result, disputing Members have entered into bilateral agreements permitting retaliation and compliance panel processes to progress on an agreed schedule and have initiated new dispute proceedings aimed at removing retaliatory measures. Where a U.S. law or regulation is at issue in a WTO case, the adoption by the WTO of a panel or Appellate Body report finding that the measure violates a WTO agreement does not give the report direct legal effect in this country; thus federal law is not affected until Congress or the executive branch, as the case may be, takes action to remove the offending measure. Where a restrictive foreign trade practice is at issue, Section 301 of the Trade Act of 1974 provides a mechanism by which the United States Trade Representative (USTR) may challenge the measure in a WTO dispute settlement proceeding and authorizes the USTR to take retaliatory action if the defending Member has not complied with the resulting WTO decision. Although Section 301 was challenged in the WTO on the ground that it requires the USTR to act unilaterally in WTO-related trade disputes in violation of DSU provisions requiring resort to multilateral WTO dispute settlement, the United States was ultimately found not to be in violation of its DSU obligations. H.R. 496 (Rangel) would create an Office of the Congressional Trade Enforcer that would, inter alia, investigate restrictive foreign trade practices in light of WTO obligations and call on the USTR to pursue WTO cases where alleged violations are found; express congressional dissatisfaction with WTO decisions; and restrict implementation of a revised methodology for calculating dumping margins adopted by the Commerce Department in 2007 in response to adverse WTO decisions. S. 363 (Snowe) would grant the U.S. Court of International Trade exclusive jurisdiction to review de novo certain USTR determinations under Section 301 of the Trade Act of 1974, which may in some cases involve the initiation and conduct of WTO disputes, and would amend various Section 301 authorities themselves. S. 1466 (Stabenow) and S. 1982 (Brown) would establish mechanisms under the Trade Act of 1974 requiring the USTR to identify particularly harmful foreign trade practices and, where appropriate, to initiate WTO cases to remedy these practices

Database Protection in a Global Economy

In 1996, a database treaty that the European Commission had put forward, in connection with the WIPO negotiations on transmissions in cyberspace, ultimately failed to win the support of other regional groups. Since then, the inability of the United States Congress to enact any form of database legislation has stymied further multilateral undertakings on this topic. This impasse may soon be broken, however, owing to the change of Administrations and to the appointment of new committee chairmen in the United States House of Representatives. This article will discuss the prospects for an international regulatory framework for non copyrightable databases in the light of recent developments in the United States. Part 2 will locate the database problem within the larger context of international intellectual property protection, and it will demonstrate why the European Commission’s 1996 Directive on the legal protection of databases represented a radical departure from basic tenets of the classical intellectual property system handed down from the nineteenth century. Part 3 will compare the existing E.U. model of database protection with the two proposed models currently under consideration in the United States, from which any compromise formula is likely to be drawn. It ends with some reflections on the deeper legal and economic implications of these proposals. Part 4 will then explore the implications for the international intellectual property system likely to arise if the U.S. adopts a model of database protection that differs significantly from that of the E.U. It proposes an umbrella treaty to bridge the gap between high and low protectionist models. While a low protectionist outcome in the United States is by no means certain at the time of writing, a careful consideration of ways and means to reduce friction between countries that opt to provide different levels of protection in the global marketplace seems merited at the present juncture