A Trade Agreement Creating Barriers to International Trade? ACTA Border Enforcement and Generic Drugs in Transit
Dr. Henning Grosse Ruse - Khan
On 3 December 2010, the final text of the Anti-Counterfeiting Trade Agreement (ACTA) was published after years of secret negotiations. Once signed, ACTA will be the most ambitious multilateral agreement on the enforcement of IP rights. It contains detailed provisions on civil, border and criminal sanctions, as well as IP enforcement on the internet.
This presentation focuses on potential conflicts between border IP enforcement and free trade: ACTA considers itself a trade agreement. The negotiating parties, as well as its main proponents, emphasize the importance of strong intellectual property (IP) enforcement standards for international trade in IP protected goods. At the same time, the border enforcement rules in ACTA carry the potential to create significant barriers to international trade, especially in generic medicines. The controversy over transhipments of generic drugs from India to various developing countries seized while in transit through ports of EU member states demonstrates this potential: Merely on the basis of alleged patent infringements in the transit country, custom authorities seized several shipments of generic drugs - although the drugs did not violate any patents in the country of origin or the country of destination. Against the background of the EU transit seizure cases and the WTO dispute settlement proceedings by India and Brazil against the EU, this presentation examines the relevant ACTA provisions.