For many non-U.S. parties and public interest advocates, the Trans-Pacific Partnership Agreement (TPP) intellectual property chapter is seen primarily as a threat. It is the latest step in a long running agenda to shift between policy making forums to achieve new global “maximalist” intellectual property policies that are not achievable in multilateral forums. This narrative is correct. And the real politics of the negotiation suggests that the most positive outcome for the IP chapter may be its (or the larger agreement’s) failure. But the agreement’s negotiations does offer opportunities to discuss what a positive IP chapter might look like. Here is one more idea in that larger dialogue – ban the use of Special 301 between its parties.
Proposal
No country may use unilateral adjudication or a threat of unilateral sanction to exert pressure on any member to adopt an intellectual property rule or policy that has not been adjudicated to violate this or another binding international treaty through dispute settlement provisions of this or another binding international agreement.
“Unilateral adjudication” shall include any administrative, judicial or quasi judicial process of one country that is not agreed to by a second country and through which public findings are made that a specific course of conduct or policy of the second country violates or complies with the norms of this or any other international agreement or law, or any norm or policy not reflected in any international agreement or law. The term shall not apply to diplomatic correspondence or consultation that does not result in any public finding or order.
Footnote: For greater certainty, the U.S. “Special 301” program, pursuant to Section 183 of the Trade Act of 1974, as amended, is a unilateral adjudication for purposes of the provision above.
Justification
This provision is needed to clarify and implement the obligations of the World Trade Organization that ban unilateral adjudication of disputes as well as differential trade treatment under Generalized Systems of Preferences that are not based on the “needs” of developing countries.
After the WTO, it was the expectation of many countries that all members would halt the unilateral adjudication of trade disputes, such as through the U.S. Section 301 of the Trade Act of 1974, and its intellectual property-specific companion “Special 301.” It is fairly clear that the continuation of such programs violates the WTO‘s rulings on unilateral adjudications and on GSP program criteria. The proposed language above would implement the underlying purpose of the WTO GSP Enabling Clause and its dispute settlement understanding, and would have the advantage of saving the time and resources that would be required to litigate the same issue through the WTO to its logical conclusion.
Note that the Special 301 differs from the more common practice of raising issues of concern in diplomatic correspondence. The latter would not be prohibited by this amendment. Under U.S. law and common legal definitions, Special 301 watch lists are created through a process of adjudication. It follows the taking of evidence and submissions through a formal notice and hearing process and requires the application of law to facts by a panel of appointed adjudicators – all U.S. government officials involved in trade policy matters. Under US law, the Special 301 report is an “order” and the process is bound to the administrative justice requirements applicable to any informal agency adjudication. None of these elements are present in normal diplomatic correspondence, and the proposed language makes clear that such correspondence is not banned by the proposal.
