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BALANCING ACTS: EXPLORING DISTRIBUTIVE JUSTICE IN INTERNATIONAL TRADE GOVERNANCE - A WTO PERSPECTIVE
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BALANCING
ACTS: EXPLORING DISTRIBUTIVE JUSTICE IN INTERNATIONAL TRADE GOVERNANCE - A WTO
PERSPECTIVE
AUTHORED BY – SRIJAN MISHRA
Position – Research Scholar
Institute- Maharashtra National Law University Nagpur
Contact No. - +91 9631959595,
Email Id. – srijanresearch@gmail.com
Correspondence Address- Maharashtra National Law
University Nagpur, Wardha Road, Khapri, Nagpur – 440008
Abstract
Globalization
has made the world closely knit and the
countries are cooperating with a better tomorrow. Areas like agriculture,
technology, trade, and culture have gone through vast changes and advancements.
In this era of globalization, developed countries have the advantage of more
resources than other countries. The major expansion has been in the area of
International Trade. We have observed
changes in the way of doing business after World War II. The countries after
World War II realized that a new trade system was very important for them to
survive and grow. The World Trade Organization came into existence after GATT.
The WTO ensures that there remains no discrimination between the developed
states and the Least Developed States.
The WTO boasts of its non-discrimination policies. The
WTO framework is such that it tries to protect the developing and the LDCs from
the developed countries. The principles of Distributive Justice are very
crucial in the 21st Century. International trade has helped all the
countries to come forward and grow. Distributive Justice is the need of the
present time because if these principles are ignored then there cannot be
harmonious growth of all the nations.
The paper examines different principles of the WTO
framework and the presence of the principles of Distributive Justice in them.
Keywords – WTO, Distributive Justice, International Trade, Parallel Import,
Pharmaceuticals.
Introduction
“The
rules of distributive Justice cannot be rules for the conduct towards equals
but must be rules for the conduct of superiors towards their subordinate.”[1]
-F.A. Hayek
In
this era of globalization, countries aspire for the greatest powers wherein
every country wants to become a superpower and have effective control in the international
sphere. History shows that there cannot be a single entity at the international
forum controlling the world and with time new powers emerge and the countries
with more economic backing end up influencing the world at large. The Developed
countries are now being challenged by the Developing countries not only at the
Regional but also at the international stages. The post-World War II globalized
world has observed a technological and economic boom with the developing
countries opening doors to international trade and making their presence felt
at the global level.
The
expansion of trade and investment has helped the growing countries reap the
maximum benefits and become more stable economically. These growing economies
have at the international forums shown an aggressive approach to influence the
world powers to focus on their needs and requirements. The so-called ‘Superpowers’
handling and controlling the major resources in the world have not been very
fair and just to the Developing and Least Developed Countries, in terms of
resource distribution and securing their rights at International Forums. In the
post-World War II era, the countries supported unrestricted and open trade to maximize
economic benefits for their citizens and their growth. Discriminatory treatment
was discouraged and not discrimination and the right to trade freely was
supported. The idea of Distributive Justice and the right of the countries to
express their need and trade according to their national requirements was
embodied as the principle of the new world trade order where efforts were made
to reduce the gap between the global North and South.
Considering
the same, the World Trade Organization was conceptualized and established with
the principles of distributive Justice as a part of the concept behind the
Organization. The same can be observed from the Preamble which vouches for a
“better tomorrow for the countries”. The Preamble states clearly that the WTO
would work to raise the standard of living and ensure full employment. The
WTO’s framework is designed to ensure that the developing and the least
developing countries share the same growth opportunities and utilize their
potential to the fullest.
The
basic premise behind the concept of Distributive Justice as promulgated by John
Rawls was that all social goods should be distributed equally, and unequal
distribution should only be promoted if it would be for everyone’s advantage[2] The
idea of Distributive Justice relates to the just distribution of goods in
society but also allocating the benefits and burdens equally and justly. The
idea of Distributive Justice has become more relevant in the present times as
societies have evolved, and the concept of ‘justice’ has also evolved. These
new dimensions to the idea of justice have brought forward many propositions.
The concept of distributive justice has been dealt with by many philosophers
and jurists.
The
World Trade Organization (WTO) is one of the few international institutions that
has the power to enforce its principles through different steps and measures.
The WTO framework ensures non-discriminatory practices in international trade.
In principle, it ensures that the developing and the least developed nations
receive the same benefits as the developed countries. One such feature of the
framework is the Parallel import, which can be said to embody the principle of
distributive justice in the true sense.
The
paper focuses on examining different principles of the WTO which have the
elements of distributive justice specifically, parallel import concerning
pharmaceuticals.
Distributive Justice
‘Justice’,
said Daniel Webster is the greatest interest of man on the earth[3];
Justice[4], as
Aristotle puts it is like the bond of man with the society and state without
justice is like robber’s bands. Justice is both an objective reality and
abstract quality within the realm of law involving the ideas of ethics,
morality, equality, liberty, individual needs and good conscience. Justice also
involves man fold ideas and principles; it has varied forms such as legal,
social, natural, democratic, totalitarian etc. This classification is viewed as
the basis for understanding the concept and nature of justice. According to
J.S. Mill ‘Justice’ means something which is not wholly right to do or wrong
but through which an individual can claim some moral rights.[5]
Hence, in short, the idea of justice is not bounded or abstract instead it is
evolving and changing with the needs of the time.
Distributive
justice primarily concerns itself with the fair, just or equitable distribution
of benefits and burdens. These benefits and burdens are an integral part of
social life and assume all forms such as income, economic wealth, political
power, taxation, work obligations and education. Hence distributive justice
aims to bring in order and maintain a just distribution of benefits and burdens
in society.[6]
Campbell
said, “it remains illuminating for me to see that what justice has to do
with the distribution of benefits and burdens amongst persons, these being
loosely defined so as to cover the desirable and undesirable thing or
experience”.[7]
Thus, the means of determining what amounts to just distribution, the means of
achieving it and maintaining such a distribution is the burden.
Due to the belief that social
obligations include bringing about just distribution, distributive justice is
frequently viewed as a form of social justice. In addition to being a legal
concept, distributive justice is also a moral, intellectual, and political one.
The term justice can be defined in a variety of ways, but in all cases, it
denotes a notion, a claim, and a right. Hence, legalized moral demands include
those pertaining to minimum wages, pensions, and health care. John Rawls in his book Theory of Justice and
Political Liberalism has in the simplest form dealt with the concept of
distributive justice. The theory sets
out the framework for political justification that outlines the significance of
different relevant factors and offers an approved description of the
perspective from which judgments are crafted. It has also been tasked with rationale
for the allocation of societal resources in a manner that is fair, efficient,
and not violative of rights.
WTO AND ITS PRINCIPLES
The early and modern trade
relationships were shaped by colonization and corresponding restrictions of
import from sources other than the colonizer.[8] Trade has been one
of the most important aspects for the countries since time immemorial
but trade during the colonization period was restricted and reserved. As time
progressed, the countries focused on the importance of liberalization in trade
policies for peace and growth and equal opportunities for the nations. It was
only during the 17th and 18th Centuries that the idea of
trade liberalized, and markets started opening for everyone. Non-discriminatory
provisions were found in the bilateral treaties of Friendship, Commerce and
Navigation. These provisions included ‘most favored nation’ status and
‘National treatment’.[9]
The
road to the establishment of WTO was not a smooth one as it was difficult to
align the national interests of different countries with each other which
included the developed, developing and least developed countries. It was a
result of long-term negotiations and the zeal for collective cooperation of the
countries for development and growth.
It
was result of a long-term negotiation and the collective cooperation of the
countries. After the World War I, through the League of Nations the idea of
liberalized trade was given favor. The United States of America brought the
Smoot Hawley Tariff Act, 1930 and increased the tariffs. After the World War
II, the countries realized that they cannot trade in the same restricted manner,
and they were doing before the wars.
The
United States of America in 1945, through a publication, ‘Proposals for
expansion world trade and empowerment’[10]
proposed creation of an International Institution (International Trade
Organization). The idea of an international Institution did not materialize but
the General Agreement on Trade and Tariff (GATT), which was signed by 23
nations in October 1947 did come into existence. As the countries were pushing
for a liberal trading system, GATT was adopted to reduce the trade barriers
that existed in the form of tariffs and quotas.
It
took effect as an international agreement on January 1, 1948. The purpose is
clear from its preamble, which states “substantial reduction of tariffs and
other trade barriers and the elimination of preferences, on a reciprocal and
mutually advantageous basis.” [11]
There existed no International Institution, but this Agreement resulted in
creation of principles freer trade between the countries. The principles of
‘Most favored Nation’ and ‘National Treatment’ are results of GATT.
The
International Trade Organization did not see the sun, but a new Institution was
adopted after the Uruguay Rounds of trade negotiations. 123 countries signed
the Marrakesh Agreement[12] to bring
the World Trade Organization into existence. The Uruguay Rounds can be said to
be the most ambitious rounds of trade negotiations. There was another agreement
part of it, which related to services, Intellectual Property, Capital, Textiles
and agriculture. The establishment of the World Trade Organization can be said
to be one of the most important steps in implementing liberalization and
non-discrimination policies in International Trade. Though the principles were
given in the GATT, it was the WTO that implemented and enforced them.
It
is the government that negotiates, signs and implements the agreements, the
goal of WTO is to “help the producers and importers and exporters conduct
business”.[13] The negotiations have aided in opening trade markets
in cases when nations have encountered and desired a reduction in trade
barriers. However, the WTO's mandate extends beyond market liberalization; in
certain situations, its regulations encourage the upholding of trade barriers
to safeguard consumers or stop the spread of illness, for example.[14]
·
Preamble of the Marrakesh Agreement
The
preamble of the Marrakesh agreement through which the WTO was established made
it certain that the objective of the Organization would be to help all the
countries grow together and without discrimination. The preamble asserts that
the parties involved in the agreement should acknowledge that their actions aim
to improve living standards, guarantee full employment, and foster a
substantial and consistently increasing level of actual income and effective
demand. Additionally, it advises that these endeavours should prioritize the
optimal utilization of the world's resources in alignment with the goal of
sustainable development.
The
more important, with relation to the concept of distributive justice, is the
second one wherein, it is further recognized that there is a requirement for
affirmative actions aimed at ensuring that developing countries, particularly
the least developed among them, attain a proportionate share in the expansion
of international trade that aligns with the necessities of their economic development. This clearly shows the intent behind the WTO.
The principles of distributive justice are enshrined deeply in the Marrakesh
Agreement.
·
Most Favoured
Nation Treatment
As
per the Most-Favoured-Nation (MFN) treatment, Members are required to grant all
other Members the most advantageous tariff and regulatory treatment that is
given to a particular Member's product during the import or export of ‘like products”.[15] It
is against the Most-Favoured-Nation (MFN) clause for Members to treat trading
partners differently. It is included in a number of World Trade Organization
agreements and is widely recognized as a key component of the multilateral
trading system.[16] It
can be said that it means that the trading partners would enjoy lower tariffs,
fewer barriers and the highest import quotas or it could mean none of this. The
treatment must be non-discriminatory. No country can discriminate against the
other in the matter of trade except for the exceptions of the MFN
principle.
The
Most-Favoured-Nation (MFN) principle is a fundamental tenet that can assert a
valid role in substantially contributing to the success of the General
Agreement on Tariffs and Trade/World Trade Organization (GATT/WTO) in promoting
trade liberalization and enhancing overall welfare. It can be said to be one of
the most important principles of WTO. It has been in practice for a long time.
The nature of this has changed with time as earlier it was used in the
bilateral agreements and then later many measures were taken that resulted in
limiting the function of MNF. It is believed that this was one of the reasons
that the division of trade blocs happened. After the WWII, this principle was
adopted unconditionally in GATT.[17]
The
countries can use their discretion as to tariff classification under this principle,
but it should not result in discriminating against another member. In SPF Case[18],
the panel recognized that each WTO member had the authority to express notable
preferences in tariff classifications in the SPF dispute. However, these
classifications would only be considered legitimate if they did not
discriminate against similar items made by different WTO members.[19]
·
Exceptions to MFN Principle
Regional Integration
According
to GATT Article XXIV, regional integration is allowed as an exemption to the
Most-Favoured-Nation (MFN) criterion, but only under specific circumstances.
First and foremost, practically all trade in the region needs to be free of
tariffs and other trade restrictions. Second, the trade obstacles and tariffs
imposed on foreign nations must not rise above the pre-regional integration
levels.[20]
The
Generalized System of Preferences
Generalized
System of Preferences is a specific policy that is offered to developing
nations in an effort to increase export earnings and promote overall
development Under the Most-Favoured-Nation (MFN) designation, goods coming from
developing nations are eligible for lower tariff rates than those charged at
standard rates under the (GSP) framework.[21]
The GSP has the following characteristics: First, preferential tariffs may be
applied not only to countries with special historical and political
relationships. Second, the beneficiaries are limited to developing countries.
Finally, it is a benefit unilaterally granted by developed countries to
developing countries.[22]
There
are some other exceptions to this rule. Though the MFN is a principle of
non-discrimination, there are certain drawbacks of this principle. Firstly, the
Countries may choose to subsidize their own sectors in the absence of tariffs,
allowing them to export goods at incredibly low rates. This unjust behaviour
may cause businesses in the nation of the trading partner to relocate.
Following the competitors' demise, the government providing the subsidy
decreases it, leading to price hikes and the establishment of a monopoly. This
practice is commonly referred to as dumping.[23]
Secondly,
the Customs Unions, Developing Nations, and Regional Trade Zones are the only exceptions
to this rule.[24]
·
National
Treatment
GATT Article III encapsulates the
idea of treating other people equally to one's citizens. This provision
requires that, once they clear customs, imported goods shall be treated no less
favourably than comparable domestically produced commodities. Furthermore,
national treatment is covered by GATS Article 17 and TRIPS Article 3 concerning
services and intellectual property protection, respectively.[25]
The national treatment rule within
the WTO serves the purpose of removing covert domestic trade barriers by
requiring WTO Members to treat imported products no less favorably than
domestically produced ones. Adhering to this principle is crucial for preserving
a balance of rights and obligations and is fundamental for the sustenance of
the multilateral trading system.[26]
As a result of protectionist demands
from home producers, importing countries frequently try to utilize
discriminatory application of domestic taxes and laws to safeguard national
output. This lowers economic welfare by distorting the terms of competition
between imported and native goods. Importing nations frequently are inclined to
apply domestic taxes and regulations in a discriminatory manner, largely due to
pressure from local producers advocating for protection. The competitive
environment between imported and domestically produced items is distorted by
this behaviour, which eventually lowers economic welfare.[27] National treatment is the basic
and inventive solution to take care of issue of overall protection for
innovative designers, authors and creators.
National treatment, wherein a treaty
member extends to nationals of other member states the same treatment as its
own citizens, enables that member and its courts to apply familiar laws. When
complemented by the system of minimum rights, it tends to foster a degree of
harmonization in national laws, at least to some extent.[28]
PARALLEL IMPORT AND WTO
Parallel
trade occurs when products, lawfully manufactured and protected by copyright,
trademark, or patent, are sold in one nation and subsequently imported into
another without the consent of the intellectual property rights owner in the
first nation.[29] It
is most effectively defined as international trade that is done without the
manufacturer's consent. Under this arrangement, patent-protected goods are
imported without the patent holder's permission.[30]
The importer gets the benefit, and the loss is suffered by the patent owner.
This idea is at times referred to as ‘grey market’.
Regarding
the grey market, The U.S. Court of Appeals for the Third Circuit pointed out
that, “The term ‘grey market’ unfairly implies a nefarious undertaking by the
importer, and the term parallel import accurately describes the goods and is,
perhaps, a better term because it is devoid of prejudicial suggestion.”[31]
The
principle of parallel import is based on the notion that the owner of the IPR
who is compensated once by the first sale is not authorized to further claim the
right to overuse or resale the commodity in the market. Consequently, the
inventors exhaust their rights to stop further resale.[32]
For example, a trading firm can legally acquire quantities of prescription
drugs in Greece and import them into Sweden without seeking approval from the
local distributor who holds the licensed patent rights.[33]
The products that are imported through the practice of Parallel import are
genuine and are not forged. Although these products may have completely
different packaging and may not provide the original warranty.
Countries
are allowed to establish their preferred exhaustion rule for each type of
intellectual property rights. If they are not constrained by an international
agreement, nations are essentially free to choose whether to permit or prohibit
parallel commerce. Nevertheless, no multilateral agreement or international
convention on intellectual property rights has established a specific regime
for intellectual property rights exhaustion yet.[34]
Among
other multilateral WTO agreements, the TRIPS Agreement specifically mentions
the provision of national treatment in Article 6. American negotiators in the
Uruguay Round specifically attempted to prohibit parallel trade meant to
safeguard creative industries like the pharmaceutical industry and other
industries like music and film by introducing a worldwide standard of national
exhaustion into the TRIPS Agreement.[35]
The
establishment of an international standard for national exhaustion proved
challenging due to conflicting views on the benefits of parallel trade among
different countries. As a result, reaching a consensus on this matter was not
attainable. As an example, certain WTO members, like Switzerland and the
U.S.A., sought to incorporate the principle of national exhaustion into the
Agreement. Conversely, countries such as Australia, India, and New Zealand
advocated for the principle of international exhaustion. This divergence in
perspectives hindered the attainment of a unified approach within the Agreement.[36]
Thus,
it appears that the ultimate agreement made in Article 6 is limited to
maintaining the territorial monopoly for regulating parallel commerce while
excluding the treatment of parallel trade from the dispute settlement process.[37] Furthermore,
the Declaration on the TRIPS Agreement and Public Health[38]
affirmed and supported this interpretation.
Since
many developing nations viewed parallel trade as an effective means of
addressing concerns about potential increases in pharmaceutical prices due to
strong patent protection during the ratification and implementation of the
TRIPS Agreements, the ability to allow it was undoubtedly very important.[39]
Furthermore, several developing nations supported parallel commerce because it
would enable license holders in those nations to access export markets for
high-tech goods like pharmaceuticals.
Moreover,
parallel importing firms typically acquire a product in one country at a price
lower than the selling price in the second country.[40]
Specifically, the regulation of parallel trade in the pharmaceutical sector has
emerged as a significant concern in the global trading system, given that the
welfare effects of parallel imports of pharmaceuticals are generally uncertain.[41]
There
is a tension between the two main objectives of public policy. Granting patents
to pharmaceutical companies for their breakthroughs is one of the main,
long-term goals in encouraging research and the development of new medications.
More specifically, the higher pricing of patented medications benefits
pharmaceutical companies by allowing them to defray significant research and
development (R&D) expenses. However, public policy also seeks to guarantee
that, at least temporarily, existing medications are widely accessible and
reasonably priced. As a result, there is a trade-off between maintaining higher
(monopolistic) drug pricing that acts as incentives for long-term R&D
efforts and facilitating short-term access to affordable medicines.[42]
Patents
are very important to the pharmaceutical industry, which does a lot of
research. Strong patent protections for novel pharmaceuticals are backed by
international legislation that forbids parallel commerce.[43]
Representatives from the pharmaceutical industry, for instance, contend that
allowing the parallel importation of drugs will obstruct the development of
novel drugs.[44]
Many
developing-country policymakers, however, advocate an open parallel trade
regime. A greater emphasis has been assigned to drug affordability than to
international R&D promotion. For instance, they maintain that it's critical
to have access to the most affordable suppliers of medications. Naturally,
pharmaceutical corporations in industrialized nations are the ones responsible
for the great majority of new inventions in the globe today.[45]
The
majority of developing nations resist parallel trade restrictions due to
concerns that such restrictions could lead to price discrimination, resulting
in elevated domestic pharmaceutical prices.
Economically
speaking, a monopolistic pharmaceutical producer's ability to engage in
third-degree pricing discrimination is limited by the parallel trade of pharmaceutical
products.[46]
Third-degree price discrimination occurs when a monopolistic pharmaceutical
manufacturer offers its products to different consumers or market segments at
different prices, yet the price per unit of output is the same for members of
the same segmented market or group.[47]
Parallel
import can be said to be the best example of the presence of the principle of
distributive justice. Parallel import has helped the developed, developing and
the least developed countries.
THE CASE FOR COUNTRIES
In
2004, 5 million Africans were living with AIDS, and that number was
increasing. Five million individuals,
about 11% of the population, became infected with the AIDS virus in South
Africa alone. Most patients struggle to pay about Rd 850 ($110) every month
that antiretroviral medication costs.[48]
It
was therefore appropriate to allow generic versions and parallel importation of
ARV medication, even though the government hesitated quite some time to
acknowledge the true scope of the pandemic.
In
Mozambique, Bayer offers the medication ciprofloxacin for $740 (US dollars) per
100 units, yet due to local generic competition, the same medication is only
marketed for $15 in India.[49] India
permits parallel importation and adheres to the principle of international
exhaustion of rights.[50]
Parallel
import shares in the German market are trending towards the ground, with a mere
4.9% in 2004. As with pricing policies that reflect Germany's status as a
high-cost nation, the low incidence of parallel imports is reflected in
policies regarding parallel substitution and the lack of incentives for it.
Greece, on the other hand, is notable for being the most aggressive parallel
exporting nation in Europe, accounting for 22% of the retail market.[51]
On
the other hand, re-importation has always faced criticism in the United States,
particularly regarding imports from Canada, where safety standards are far
higher than in other source nations like Mexico, India, China, or Brazil.[52]
It
was observed that almost immediately after local legislation was introduced in
Kenya, parallel importation began, which helped to fuel the expansion of a
pharmaceutical business worth at about 185 million.[53]
Several stakeholders expressed their appreciation for the mechanism's
functioning and emphasized its substantial potential benefits in improving
pharmaceutical access, lending their support to it.
CONCLUSION
The
Idea of Distributive Justice has changed with time but the essence of it
remains the same everyone should have equal opportunities and discrimination
should not exist. In the modern world where every country wants to be a
superpower and keep their National Interest above anything else, the principles
of distributive justice are hard to be implemented at the international level.
Even then the International Institutions have tried their best to keep every
country together in the process of development.
The
WTO is one such body that has vouched for equal and sustainable growth for
every country. The WTO Agreement has principles of Distributive Justice
enshrined in it. There have been some questions raised on the working of the Institution,
but it has stood tall against discrimination.
The
WTO mechanism for parallel import is sound and clear. The countries are to
fulfil the obligation under the agreement. The WTO has principles of
distributive justice enshrined in its work. The idea of parallel import has
helped the developing and least developed countries. It was recommended in the
UNCTAD[54]
report of 2007 that the least developed countries should be helped to fully
utilize the flexibilities under the TRIPS. It was also suggested that capacity
building should be done of such LDCs that are not able to utilize flexibilities
such as parallel import and compulsory licensing. The non-discriminatory
principles such as the MFN rule and the National Treatment principle further
affirm that the WTO stands for free trade with equal opportunities and
protection for all countries.
The
idea of parallel import and compulsory licensing has helped the least
developing countries and the developing countries in obtaining life-saving
drugs at minimum prices. It has been observed that pharmaceutical companies
have always pressured the governments to protect their interest by banning the
parallel importation of the drugs and to maintain their monopoly. The WTO
through its dispute resolution mechanism has also helped the countries to
import the essential drugs that have been protected by the intellectual
property laws. The developing countries have also enjoyed growth under the
aegis of the World Trade Organization. The parallel import has helped the
countries in exploring the market and benefitting the consumers directly. The
WTO mechanism has helped in the development and growth of the member countries
together and without any discrimination.
It
would be safe to say that the WTO has upheld the principles of Distributive
Justice in the 21st Century. It has been possible even after having
many Superpower countries indirectly controlling the international markets.
There have been many questions raised on the working of the WTO, but the
Institution has worked for the free market and for equal growth of all the nations.
[1] F.A Hayek, Law, Legislation and
Liberty: A New Statement of The Liberal Principles of Justice and
Political Economy, 248, Routledge and Kegan Paul Ltd., 2014.
[3] Suresh Sharma, Distributive Justice Under Indian
Constitution with Reference To Right To Equality And Property, Deep & Deep Publications, 1989.
[4] Ibid.
[6] Julian Lamont & Christi Favor,
Distributive Justice, Stanford Encyclopedia of Philosophy (available at,
Https://Plato.Stanford.Edu/Entries/Justice-Distributive/.
[7] Suri Ratnapala, Jurisprudence, 333, Cambridge
University Press, 2nd ed., 2009.
[8] Simon Lester, Bryan Mercurio et
al., World Trade Law: Text, Materials and Commentary, 56, Hart
Publishing, 2d ed., 2012.
[9]
Ibid. At 57.
[10] Part
V, Proposals For Expansion World
Trade And Empowerment, Department of State, Publication 2411, Commercial
Policy Series 79.
[11] Preamble, WTO Agreement: Marrakesh
Agreement Establishing the World Trade Organization, Apr. 15, 1994, 1867 U.N.T.S.
154, 33 I.L.M. 1144 (1994)
[12]
Ibid
[13] Supra 8
[14]
Understanding The WTO, Information and External Relations Division, 5th
Ed. 2005, available at https://www.wto.org/english/thewto_e/whatis_e/tif_e/understanding_e.pdf
[15] Report Of Ministry of Economy, Trade and Industry on Most
Favored Nation Principle, Japan, available at Http://Www.Meti.Go.Jp/English/Report/Downloadfiles/2010WTO/2-0Overview.Pdf.
[16] Henrik Horn & Petros C. Mavroidis, “Economic and
Legal Aspects of The Most-Favored-Nation Clause”, EUROPEAN JOURNAL OF POLITICAL
ECONOMY, Vol 17 pp. 233–279, 2001.
[17] Supra 15
[18] Report of the Panel, Japan – SPF Dimension Lumber, L/6470 - 36S/167, available at
http://www.sice.oas.org/dispute/gatt/88lumber.asp
[19] Ibid.
[20] ARTICLE XXIV, Marrakesh Agreement Establishing the World Trade
Organization, 1867 U.N.T.S. 187, 33 I.L.M. 1153 (1994).
[21]Generalized System of Preferences,
UNCTD, TD/B/GSP/FORM/2/Rev.1, available at
https://unctad.org/system/files/official-document/tdbgspform2rev1_en.pdf
[22] Supra 15
[23] Peter Bossche, The Law And
Policy Of The World Trade Organization 42, Cambridge University Press,
2005.
[24] GATT Article III:8(A); GATT
Article III:8(B)
[25]
Https://Www.Wto.Org/English/Thewto_E/Glossary_E/National_Treatment_E.Htm, Oct.
30, 10:00 AM
[26] Supra 15
[27] Ibid.
[28]
U Loewenheim, The
Principle of National Treatment In The International Conventions Protecting
Intellectual Property, MPI Studies On Intellectual Property, Springer, 2009.
[29] Frank Müller-Langer, “Does Parallel Trade Freedom
Harm Consumers In Small Markets?”, Croatian
Economic Survey Vol. 11, pp. 11-41, 2008.
[30]
Http://Www.Who.Int/Medicines/Areas/Policy/Doha_Declaration/En/.
[31] Weil Ceramics & Glass, Inc. V.
Dash, 878 F.2d 659, 11 USPQ2d 1001 (3d Cir. 1989).
[32] Carlos M Correa, Intellectual
Property Rights, The WTO and Developing Countries, Zed Books 2000.
[33] Supra 29
[35] Supra 29
[37] Ibid
[38] Paragraph 5(D) Of the Declaration on The TRIPS
Agreement And Public Health, “The Effect Of The Provisions In The TRIPS
Agreement That Are Relevant To The Exhaustion Of Intellectual Property Rights
Is To Leave Each Member Free To Establish Its Own Regime For Such Exhaustion
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[39] Keith E. Maskus Parallel Imports in Pharmaceuticals: Implications
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[40] Keith E Maskus, and Yongmin Chen,
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[42] Ibid.
[43] Ganslandt, Mattias and Keith E. Maskus,
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[44] Ibid.
[45] Alan O Sykes, “TRIPS, Pharmaceuticals,
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[46] Richard Schmalensee, “Output and Welfare
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[47] Joan Robinson, Economics of Imperfect
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[48] Jacob Arfwedson, Re-importation (Parallel
Trade) in Pharmaceuticals, Institute for Policy Innovation: Policy Report #182,
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https://www.ipi.org/docLib/PR182-ParallelTrade.pdf-OpenElement.pdf.
[49] Jackline I. Nyaga, Implementing
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Kenya, (2009), (Unpublished PhD thesis, Stanford University).
[50] Kapil
Wadhwa V. Samsung Electronics, 2013 (53) PTC 112 (Del.)
[51] Anna Scheuermann, Parallel Import of
Pharmaceuticals in the EU, (2006), (Unpublished Thesis, Lunds University).
[52] Supra 48
[53]Supra 51.
[54] The Least Developed Countries
Report, 2007, UNCTAD/LDC/2007, available at https://unctad.org/publication/least-developed-countries-report-2007#:~:text=The%20least%20developed%20countries%20(LDCs,assets%2C%20and%20high%20economic%20vulnerability.
Article Information
BALANCING ACTS: EXPLORING DISTRIBUTIVE JUSTICE IN INTERNATIONAL TRADE GOVERNANCE - A WTO PERSPECTIVE
Authors: SRIJAN MISHRA
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/02/08
- Issue 7
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International Journal for Legal Research and Analysis
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