We will focus on the defences of necessity and consent, codified in the International Law Commission’s (“ILC”) Articles on the Responsibility of States for Internationally Wrongful Acts (“ARS”).5 We will explain the requirements and conditions of each of these defences, by reference to the work of the ILC, case law and scholarly commentary, and assess how they might apply to the measures implement. [...] On the other hand, in Australia–Plain Packaging, the Panel considered that the ordinary meaning of the term “in respect of”, together with the grammatical structure of Art.2(1) TRIPS, suggests that WTO Members shall comply with the incorporated provisions of the Paris Convention to the extent that these provisions relate to Parts II, III and IV of the TRIPS Agreement. [...] The Panel agreed with the Appellate Body’s determination in US–Section 211 Appropriations Act that the words “in respect of” in Art.2(1) do not have the effect of “conditioning” the scope of Members’ obligations under the Paris Convention rules incorporated into the TRIPS Agreement.16 For the Panel, this reasoning suggested that the incorporation of the obligations of WTO Members in respect of unf. [...] For the same reasons, commitments for the protection of copyright under the WCT (such as concerning the right of communication to the public under Art.8 WCT) are not likely to be implicated by domestic measures relying on the TRIPS waiver – although of course this is always a matter of analyzing the relevant copyright-related commitments related to the specific domestic measure.22 From among the I. [...] In the context of a TRIPS waiver however, this would not be the case: the latter would form the most recent, multilateral expression of flexibilities applicable in the IP – public health context of the pandemic, so that references to such flexibilities in FTAs which can be construed to include the waiver prevail over earlier IP commitments in the FTAs.
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- 70
- Published in
- Switzerland
