【摘要】 由于知识产权在国际贸易中的特殊性质，TRIPS协定中的执法条款在WTO争端解决机制中将产生一些新问题。一方面，TRIPS协定规定了知识产权执法的最低要求，WTO成员方必须履行。WTO其他成员方可以就WTO成员方是否履行了这些知识产权执法义务的争端提交WTO争端解决机构。另一方面，TRIPS协定却没有规定请求方如何证明他们的请求。其中的问题包括：TRIPS协定中的知识产权执法条款的目标是什么，是这些条款被规定在WTO成员方的国内法中，还是WTO成员方要保证这些条款在实践中的有效性？诉由是制度性的违约，还是个案的违约？救济方式是违约之诉，还是非违约之诉或者特情之诉？有关知识产权的执法措施的审查标准和举证责任如何确定？所有这些问题是通过谈判修改TRIPS协定，还是由WTO争端解决机构（专家组和上诉机构）通过司法判例途径解决？本文结合WTO争端解决机构（专家组和上诉机构）的司法判例就上述问题进行探讨和研究。

【英文摘要】Due to distinctive nature of the subject matter-intellectual propertyrights，there will be many novel issues coming up regarding the enforcement provisions ofthe TRIPS Agreement under WTO dispute settlement system. On the one hand，the TRIPSAgreement has uniquely established the minimum standards applicable to the enforcementrequirements under WTO Members’legislations，the dispute concerning whether aMember has already provided，or given operational effect to the adequate enforcementmechanisms for the substantive standards provided under the TRIPS Agreement can andmay be brought before the WTO Dispute Settlement Body. On the other hand，however,the TRIPS Agreement is silent on how such a claim may be proven，C. g.，whether thegoal(s) of the enforcement provisions of the TRIPS Agreement should be the availability ofthese provisions or effective use of these provisions? What is the cause of action：systemicfailure or an individual case failure? What are the types of remedies: violation complaintsvs. non-violation and situation complaints? What are standard of review and burden ofproof regarding the enforcement of the enforcement provisions of TRIPS Agreement?Whether these issues should be clarified through amendment to the TRIPS Agreement orthrough interpretation of panel（s）or Appellate Body? In accordance with relevant WTOjurisprudence，this article analyzes these novel issues further.

Introduction

Traditionally，international intellectual property conventions generally emphasizeprinciples and substantive standards rather than enforcement measures.[1]Few provisionsrelating to domestic obligations on the enforcement of intellectual property rights have beencontained in these conventions，treaties，and agreements. The general understanding isthat enforcement measures are specific to each country’s different social，economic，andpolitical context, and it is better to leave signatory members’to decide the appropriatemeasure to implement these international obligations.

With the rapid technological development and the rising significance of intellectualproperty rights in the realm of international trade，the evolution of international standardsfor the enforcement of intellectual property rights has becoming increasingly necessary andimportant. Certainly, under the principle of national treatment，signatory members ofinternational intellectual property conventions are obliged to provide for protection of rightholders（of other signatory members’）access to the same remedies as their nationals inrelation to the enforcement of rights. Yet, since many developing countries lack effectiveenforcement measures under their national laws，intellectual property rights holders fromdeveloped countries，particularly United States and European countries，complained thattheir intellectual property rights are not effectively protected in many developing countries.From the 1970’s，the developed countries，including the United States，Canada，andsome West European countries）have led a movement to revise the intellectual propertyconventions in order to provide effective enforcement of intellectual property laws andformal dispute mechanisms to assure compliance with the agreements.　Whereas thedeveloping countries sought revisions to permit them to retain in the use of compulsorylicenses and to decrease the compensation paid to authors of protected works.　Nocompromise could be reached.[2]

Frustrated by lack of effective enforcement and dispute settlement provisions underthe WIPO conventions，[3]developed countries turned to the GATT to demand a TRIPSAgreement with comprehensive enforcement and dispute settlement provisions.[4]

Under the insistence and the pressures of developed members, in particular, by theUnited States through its domestic law remedies（Section 301 and special 301），developing countries have changed from objections to detailed enforcement provisionswithin TRIPS Agreement to the acceptance of negotiations on a multilateral agreed set ofprinciples on enforcement measures.[5]In December 1990，the Brussels TRIPS draftcontained a comprehensive section，Part III，on the enforcement of intellectual propertyrights. The Final TRIPS Draft（December 1991）contained essentially identical provisionson enforcement.[6]These enforcement provisions were kept unchanged（except for someeditorial modifications) through to the end of the negotiations.[7]With respect to DisputePrevention and Settlement，finally，the Swiss model was adopted.[8]Part V on DisputePrevention and　Settlement　of the　final　agreement　contained　language　requiringtransparency，the establishment of a Council on Trade-related Aspects of IntellectualProperty Rights and required that disputes under the agreement would be settled inaccordance with Article XXII and XXIII of the GATT.

Thus，the TRIPS Agreement includes Part Ⅲ enforcement of intellectual propertyrights；Part Ⅱ acquisition and maintenance of intellectual property rights and related interparses procedures；and Part V dispute prevention and settlement. The provisions onenforcement of intellectual property rights, acquisition and maintenance of intellectualproperty rights and related inter partes procedures，and dispute prevention and settlementtogether formed a comprehensive intellectual property right enforcement system under WTOlaw.

Due to distinctive nature of intellectual property rights，it can be seen that the TRIPSAgreement is peculiar or“unique" under the WTO dispute settlement system.”[9]On theone hand，Articles XXII and XXII of GATT were developed and elaborated under thecontext of trade in goods，the purpose of which was to secure market access right forgoods. On the other hand，however，the subject matter of TRIPS Agreement is dealingwith intellectual property rights-a private right. The intellectual property right does notdirectly relate to border measures， while the goods，which contain intellectual propertyright do.　The TRIPS Agreement seeks to establish minimum substantive，proceduralinternational standards（including also the National Treatment，the Most FavouredNational Treatment and Transparency requirement) on intellectual property protection forintellectual property right holder rather than directly deal with market access issues ingoods.　Different from GATT，the TRIPS Agreement obligates Member States to takepositive legislative，administrative　and judicial measures　to comply　with TRIPSrequirement.

Because of this distinctiveness，there will be many novel issues coming up regardingthe TRIPS Agreement under WTO dispute settlement system.[10]As far as the enforcementprovisions under the TRIPS Agreement are concerned，the TRIPS Agreement has uniquelyestablished the minimum standards applicable to the enforcement requirements under WTOMembers’legislations，the dispute concerning whether a Member has already provided，orgiven operational effect to the adequate enforcement mechanisms for the substantivestandards provided under the TRIPS Agreement can and may be brought before the WTODispute Settlement Body. Yet, the TRIPS Agreement is silent on how such a claim may beproven，e. g.，where the lines of threshold of inadequate enforcement may be drawn.Where necessary，the WTO Dispute Settlement Body has to delimit or clarify several issuessuch as the appropriate threshold of adequate enforcement, cause of action（non-violation，nullification and impairment complaints, systemic versus individual case complaint），burden of proof, interpretation of the enforcement provisions of the TRIPS Agreement,etc.

New Issues Relating to the Enforcement of the Enforcement Provisions of theTRIPS Agreement

1.　Goal（s）of the Enforcement Provisions under the TRIPS Agreement.Availability vs. Effective Use

Article 41（1）of TRIPS Agreement provides Members shall ensure that enforcementprocedures as specified in this Part are available under their law so as to permit effectiveaction against any act of infringement of intellectual property rights covered by thisAgreement, including expeditious remedies to prevent infringements and remedies whichconstitute a deterrent to further infringement（emphasis added)．[11]Jayashree Watal notedthat during the negotiations on the enforcement provisions of TRIPS，there were conflictingprovisions in different legal systems；many （not just developing) countries were reluctantto commit additional resources for the enforcement of intellectual property rights（IPRs)．Moreover, trade negotiators were concerned about the need to balance effective provisionson enforcement of IPRs with the possibility of abusive use of these provisions againstlegitimate trade and competition.　Many were also concerned about taking on vaguelyworded，burdensome responsibilities on enforcement that could lead to future disputes. Allthese concerns contributed to minimal results in the TRIPS negotiations.　Thereby，ensuring the availability of procedures and powers to the enforcing authorities，but withlittle ensuring their effective use（emphasis added originally)[12]

It is not clear, however, from Article 41（1）of TRIPS Agreement that whetherMembers have already fulfilled their implementation obligations when they have enacted allrelevant enforcement procedures（such as civil and administrative procedures andremedies，provisional measures，special requirements related to border measures andcriminal procedures as required by the TRIPS Agreement under their national laws)，orwhether Members shall go one step further to ensure that these enforcement procedures areeffectively administered and applied by administrative and judicial authorities? What arethe criteria of“effectiveness”here or in international law? Furthermore，intellectualproperty enforcement has its own distinctive characteristics.　States create intellectualproperty rights，and create the enforcement machinery that defines and vindicates thoserights，including institutions and processes that facilitate private enforcement. However,by and large States have not taken an active role in enforcing rights. Even if in developedcountries，enforcement is generally left up to private parties. That means rights holders（or organizations of right holders) bear the expense of monitoring infringement，initiatingaction，and directing the dispute resolution process. These factors suggest an uneasyrelationship between international law and national obligations，one that is driven by thedifference between compliance of nations and the compliance of private parties. In a word，to what extent the State should be responsible for private conduct concerning intellectualproperty?[13] Since many enforcement provisions of TRIPS Agreement contain“empoweringjudicial authorities”obligations，including both mandatory and optional，which isexpressed as “The judicial authorities shall have the authority" or“A Member or Membersmay authorize（s）the judicial　authorities”（emphasis　added），how　should“effectiveness" be determined in these two different contexts? Who should has competenceto make such decision-the Ministerial Conference through“legislative" process or thedispute settlement panel or Appellate Body through interpretation of TRIPS Agreement?

2. Cause of Action: Systemic Failure vs. an Individual Case Failure

One more issue arises in relation to Article 41（1）of TRIPS Agreement, whichprovides“…o permit effective action against any act of infringement of intellectualproperty rights covered by this Agreement"（emphasis added）is to concern the cause ofaction. What is the meaning of“any act of infringement"？Should it include systemicfailures of enforcement procedures or a single breach of the obligation to provide effectiveenforcement?[14] Professor Abbott seems to advocate the“systemic failure" approach. Heargues，“The object and purpose of the TRIPS Agreement was to establish minimumstandards of IPRs protection in all WTO Members. It seems most consistent with this goalthat the members would have envisioned that each maintain a generally adequate IPRsenforcement system. This would argue for in favour of requiring the proof of a certain levelof systemic failure before DSU panels.　If it were accepted that members could bringindividual cases of enforcement failure before DSU panels，then panels would essentiallyfunction as courts of appeal or supreme courts，examining the law and facts of individualcontroversies. While the latter alternative might be applauded by some IPRs interestgroups，it seems doubtful that WTO Members intended to cross that bridge in adopting theTRIPS Agreement. The WTO DSB might find itself overseeing a torrential volume of IPRs-related cases if it chose to constitute itself as an ordinary appellate court.”[15]ProfessorAbbott argues further，“A single miscarriage of justice（in the TRIPS Agreement sense)may provide the foundation or background for a complaint, but the Member that brings acomplaint must be able to identify defects in the law that lead to the alleged miscarriage（as in the Section 337 case)．”[16]“A Member might also pursue an identifiable breach of agovernmental obligation,　such as the obligation to maintain unbiased judicial oradministrative authorities that resulted in a miscarriage of justice in an individual case.However, the Member bringing the claim should be able to demonstrate that the Membercomplained against has not taken adequate steps to remedy the situation that led to themiscarriage of justice，i. e. by taking precautions against a recurrence of the situation.”[17]Where only“ systemic failure" is acceptable as cause of action, then what is the criterionof“systemic failure" and how is it possible to prove the existence of“systemic failure" inthe context of effective enforcement provisions of TRIPS Agreement?

3. Types of Remedies: Violation Complaints vs. Non-violation and SituationComplaints

The Article 64 of the TRIPS Agreement provides Member(s) can bring violation andnon-violation and even situation complaints. Yet，the time，scope and modalities for futurenon-violation and situation complaints shall be determined by TRIPS Council.[18]

The non-violation　complaints　in　the　context　of the　TRIPS　Agreementcontroversial.　Controversies originate from similarities and differences between theinternational trade regime and the international intellectual property legal system，and theapplicability of concepts developed and elaborated under international trade regulations（including international trade dispute settlement system）in relation to internationalintellectual property protection regulation. On the one hand，non-violation remedies weredeveloped under the context of GATT, and concerned the benefits of negotiated tariffconcessions，with limited exceptions.[19]Non-violation remedies were intended to protectreciprocal tariff concessions. Whether the non-violation remedies should be applicable tothe TRIPS Agreement has been questioned，because of perceived differences between tariffconcessions commitments and the multilateral recognition of minimum rights protectionstandards under the TRIPS Agreement.[20]The TRIPS Agreement is not principallyconcerned with questions of market access. And the concept of non-violation complaintshas not yet been generally recognized under general international law.[21]On the otherhand，it has been argued that non-violation remedies would provide security andpredictability, and help ensure that the TRIPS Agreement’s flexibility is not misused inorder to avoid legitimate obligations. The TRIPS Agreement is part of the multilateraltrading system and should provide Members with the same security and predictability thatis available in relation to other WTO agreements.[22]Non-violation remedies are animportant element of the WTO dispute settlement system. There is a need to maintaincoherence among the different WTO agreements. As the TRIPS Agreement is one of thepillars of the WTO system，the principle of non-violation clearly applies also to it.[23]TheTRIPS Agreement was negotiated as part of the Uruguay Round，the result of which waspart of an overall package in which concessions in one area under negotiation were made inexchange for benefits in another. There is also an exchange of rights and obligations withinthe Agreement itself in the form of certain limitations and exceptions in relation to variousforms of intellectual property. Delaying further the application of non-violation remedies tothe TRIPS Agreement would upset the equilibrium of concessions reached during theUruguay Round.[24]

Some operational difficulties relating application of non-violation complaints to theTRIPS Agreement，especially the enforcement provisions under the TRIPS Agreement,which concern procedural rights and remedies，rather than substantive issues can also beraised. Paragraph 1（b) of the Article XXIII of GATT 1994 refers to the nullification orimpairment of a benefit accruing to a Member directly or indirectly under an agreement asa result of the application by another Member of any measure，whether or not it conflictswith the provisions of this Agreement（emphasis added）．[25]Article 26. 1 of the DSUrequires the complaining party in such cases to present a detailed justification in support ofits complaint.[26]Several issues need to be clarified，such as definition of “benefit" underthe context of the TRIPS Agreement　enforcement requirements，the meaning of“measure，the issue of causality，the burden of proof in relation to nullification andimpairment，and remedies.　None of these issues have been settled.[27]It has beensuggested that the“benefit”conferred under the TRIPS Agreement is the ability to“acquire，maintain and enforce”intellectual property rights. The“benefit”does notautomatically concern the exploitation of the subject matter of those rights. Complaints maybe considered as falling within a possible ambit of a non-violation case under the TRIPSAgreement when they are primarily linked to benefits that can reasonably be expected toresult from the conferral of intellectual property rights and their exclusivity（i. e. those thatare specific to the TRIPS Agreement)，rather than to any resulting economic returns whichare covered by market access concessions under the GATT or the GATS. Cases wherelimitations on the availability，maintenance and enforcement of an intellectual propertyright are the specific object of a complaint might fall within this category. When（arestriction on）market access is the principal object of a complaint, by contrast，thisshould be filed exclusively under the relevant procedures provided in the GATT andGATS.[28]The reasonable expectations under Part II of the TRIPS Agreement onwardsrelate to minimum standards prescribed and not to market access.[29]Furthermore，GATTpractice suggests the“benefit" of an agreement involves the creation of a competitiverelationship or competitive opportunities，usually relating to the competitive relationshipbetween imported and domestically produced goods. Yet，it is not clear whether and howthe concept of competitive relationships is applicable under TRIPS.　It has also beenargued that an ordinary market access agreement involves a government granting tariffconcessions for reciprocal tariff concessions. The concessions are made by one governmentto another and，if there were a non-violation complaint, the adverse effect would be borneby the other government. However, the TRIPS Agreement is conceived as sui generic. It isabout giving private parties certain rights.[30]#p#分页标题#e#

Whether and how panellists and the Appellate Body are qualified to interpret scopeand modalities of non-violation complaints in the context of TRIPS Agreement on case-by-case in the course of specific dispute settlement processes is not clear. The Appellate Bodyon India-Patent case（WT/DS50/AB/R）shows that the development of scope andmodalities，if any，should be resolved through direct discussions among the entiremembership and not through interpretation by panellists or the Appellate Body.[31]

4. Interpretation vs. Amendment

In general international law，there are three major schools of though on treatyinterpretation，which could be called the“intentions of the parties" or “founding fathers"school，“aims and objects" or“teleological" school and，“textual” or“ordinary meaningof the words”school.[32]For the“intentions”school，the prime，indeed the onlylegitimate object is to ascertain and give effect to the intentions，or presumed intentions ofthe parties. The“ordinary meaning of the text" school’s primary aim is to establish whatthe text means according to the ordinary meaning of its terms. For the“aims and objects"school，it is the general purpose of the treaty itself that counts，considered to some extentas having，or as having come to have，an existence of its own，independent of the originalintentions of the framers. The main object is to establish the general purpose，and construethe particular clauses in the light of it. In practice，the three schools are not necessarilyexclusive of one another, and theories of treaty interpretation can use all three，while eachtends to emphasize one particular aspect of treaty interpretation. Each method may have itsshortcomings，if employed in isolation or pushed to an extreme.[33]

For the WTO　dispute settlement process，as　far　as　the　TRIPS Agreementinterpretation is concerned，Article 3. 2 of the DSU provides that，“The dispute settlementsystem of the WTO is a central element in providing security and predictability to themultilateral trading system. The members recognize that it serves to preserve the rights andobligations of members under the covered agreements，and to clarify the existing provisionsof those agreements in accordance with customary rules of interpretation of publicinternational law.”[34]

The Panel of India Patent case（complaint by the United States) noted that customaryrules of interpretation of public international law were embodied in the text of the 1969Vienna Convention on the Law of Treaties（'Vienna Convention）．Article 31（1）of theVienna Convention provides,“A treaty shall be interpreted in good faith in accordancewith the ordinary meaning to be given to the terms of the treaty in their context and in thelight of its object and purpose.”Accordingly，the TRIPS Agreement must be interpretedin good faith in light of（i) the ordinary meaning of its terms，（ii) the context and（iii)its object and purpose according to Article 31（1）of the Vienna Convention.“Good faithinterpretation requires the protection of legitimate expectations derived from the protectionof intellectual property rights provided for in the Agreement,”the Panel claimed.[35]

Furthermore，Article XIV：1 of the WTO Agreement provides，“Except as otherwiseprovided under this Agreement or the Multilateral Trade Agreements，the WTO shall beguided　by　the　decisions，procedures　and　customary　practices followed　by　theCONTRACTING PARTIES to GATT 1947 and the bodies established in the framework ofGATT 1947.”[36]Accordingly，the Panel concluded that“in interpreting the TRIPSAgreement, the context should include the jurisprudence established under GATT 1947，unless there was a contrary provision，because the TRIPS Agreement was negotiated as apart of the overall balance of concessions in the Uruguay Round，it would be inappropriatenot to apply the same principles in interpreting the TRIPS Agreement as those applicable tothe interpretation of other parts of the WTO Agreement.”[37]“The protection of legitimateexpectations of Members regarding the conditions of competition is a well-establishedGATT principle.”[38]The Panel stated the concept of the protection of legitimateexpectation should also apply in TRIPS areas，even though this principle formed underGATT 1947（so-called GATT acquis) was primarily directed at the treatment of the goodsof other countries，while rules under the TRIPS Agreement mainly deal with the treatmentof nationals of other Members.[39]Finally，the Panel stated，“When interpreting the text ofthe TRIPS Agreement，the legitimate expectations of WTO Members concerning the TRIPSAgreement must be taken into account，as well as standards of interpretation developed inpast panel reports in the GATT framework，in particular those laying down the principle ofthe protection of conditions of competition flowing from multilateral trade agreements”[40]　　Nevertheless，the Article 3. 2 of the DSU prescribes，“Recommendations and rulingsof the DSB cannot add to or diminish the rights and obligations provided in the coveredagreements.”[41]Though the exact meaning of this provision is not clear, arguably，“itresonates in the direction of a caution to the panels and appeal divisions to use‘judicialrestraint’and not to be too activist.”[42]In this sense，it appears that the Panel in India-Patents（United States complaint）has shown itself to be too activist in construing theconcept of legitimate expectation in relation to the TRIPS Agreement.

However, the Appellate Body for the India Patent case stated that“…The Panel’sreasoning does not accurately reflect GATT/WTO practice. In developing its interpretativeprinciple，the Panel merges，and thereby confuses，two different concepts from previousGATT practice. One is the concept of protecting the expectations of contracting parties asto the competitive relationship between their products and the products of other contractingparties. This is a concept that was developed in the context of violation complaintsinvolving Articles M and XI，brought under Article XXIII：1（a)，of the GATT 1947. Theother is the concept of the protection of the reasonable expectations of contracting partiesrelating to market access concessions. This is a concept that was developed in the contextof non-violation complaints brought under Article XXIII：1（b）of the GATT.”[43]AppellateBody further stated，“The Panel misapplies Article 31 of the Vienna Convention. ThePanel misunderstands the concept of legitimate expectations in the context of the customaryrules of interpretation of public international law. The legitimate expectations of the partiesto a treaty are reflected in the language of the treaty itself. The duty of a treaty interpreteris to examine the words of the treaty to determine the intentions of the parties. This shouldbe done in accordance with the principles of treaty interpretation set out in Article 31 ofthe Vienna Convention. But these principles of interpretation neither require nor condonethe imputation into a treaty of words that are not there or the importation into a treaty ofconcepts that were not intended.”[44]

The Appellate Body did not question the generally applicable principles applied bythe Panel for interpretation of the TRIPS Agreement，but rather the approach adopted forthat interpretation. Basically，the Panel has adopted the doctrine of“aims and object"interpretation，the Appellate Body，however, has shown the inclination to use“textual"interpretation. The Appellate Body did not explain why it should adopt“textual" ratherthan“teleological”interpretation　in　this　case?　Scholars　suggest“teleological”interpretation may not be proper under the WTO dispute settlement proceeding due to thepolitically delicate nature of the TRIPS Agreement.“Any extension of the TRIPS’textualobligations through（this teleological）interpretation might cause these countries toconsider that delicate，negotiated equilibrium which they had achieved in the WTOAgreement is being altered in favour of the developed countries，which of course mightalter their goodwill in honouring their obligations.”[45]

Specific to enforcement provisions of the TRIPS Agreement，Article XVI：I of theWTO Agreement is not much help，because the enforcement provisions under the TRIPSAgreement were newly added to international intellectual property conventions to deal withmainly procedural and remedial issues relating to private rights. So far, there was noexperience in this field. Article 3. 2 of the DSU could be used to clarify the enforcementprovisions under the TRIPS Agreement in accordance with customary rules of interpretationof public international law.　Nevertheless，international law has not yet developed aconvincing doctrine to deal with procedural rights and remedial rules relating to privateright protection such as intellectual property，except the general protection of alienproperty under the doctrine of diplomatic protection.

Moreover, Part III（Enforcement of Intellectual Property Rights）under the TRIPSAgreement seems to be a self-contained system. The interests of the developed and thedeveloping countries have been balanced；the Members’rights and obligations relating toenforcement provisions have been balanced；the goal of harmonization of procedural andremedial rules，and recognition of national considerable differences have been balanced；and protection of intellectual property right as a private right and TRIPS Agreement as ainternational treaty dealing with Members’rights and obligations have been balanced.Under such complicated contexts，plus Articles 7 and 8 of the TRIPS Agreement，whichprovide for objectives and principles of protection and enforcement of intellectual propertyrights，[46]how to interpret the enforcement provisions of the TRIPS Agreement in the WTOdispute settlement proceeding may be more difficult and complex than those of substantiveprovisions under the TRIPS Agreement. So far, there was no WTO jurisprudence on thispoint.

5. Standard of Review and Burden of Proof

The issues of standard of review and burden of proof relate to, but are different fromthe interpretation of enforcement provisions under the TRIPS Agreement.　With theevolution of the“power-orientated "，“diplomatic-centered" GATT system into the“legalrules-guided"，“judicial approach emphasized”WTO system，the issue of assessingMember’s national laws consistency with WTO agreements under the WTO disputesettlement procedures will be one of the major challenges for the WTO Dispute SettlementBody.

Generally speaking，standard of review deals with，to what extent，and how a panelwhen called upon to determine whether a Member State’s laws or measures consistent withWTO various agreements, reviews relevant national laws and measures. Or conversely，thestandard of review defines，whether, and to what extent, panels should respect a WTOMember's measure although they would prefer a different factual conclusion or legalinterpretation.[47]The Appellate Body through its reviewing of legal issues appealed byparties in panel report during the appellate proceeding can indirectly touch on the standardof review issue. As far as enforcement provisions under the TRIPS Agreement areconcerned，the standard of review indicates how a panel，where called upon，assesses aMember's national enforcement legal rules，which are supposed to be effective against anyact of infringement intellectual property rights，and determine whether these enforcementlegal rules are consistent with the requirement of the TRIPS Agreement enforcementprovisions.

According to Article 1（1）of the TRIPS Agreement，Members shall give effect to theprovisions of this Agreement. Members shall be free to determine the appropriate methodof implementing the provisions of this Agreement within their own legal system andpractice. The Member States’autonomy in determining the appropriate method ofimplementing the provisions of TRIPS Agreement has been confirmed the Appellate Bodyof the India Patent case（compliant by United States)．In the India Patent（US) case，the Appellate Body reviewed the Panel’s decision that India did not meet its obligationsunder the TRIPS Agreement in that it failed to provide“a sound legal basis to preservenovelty and priority" of certain patent applications. The Appellate Body stated：“Whatconstitutes such a sound legal basis in Indian law? To answer this question，we must recallfirst an important general rule in the TRIPS Agreement.　Article 1. 1 of the TRIPSAgreement states，in pertinent part：‘Members shall be free to determine the appropriatemethod of implementing the provisions of this Agreement within their own legal system andpractice.’Members，therefore，are free to determine how best to meet their obligationsunder the TRIPS Agreement within the context of their own legal systems. And，as aMember, India is‘free to determine the appropriate method of implementing’itsobligations under the TRIPS Agreement within the context of its own legal system.”[48]

The applicability of Article 1. 1 of the TRIPS Agreement, however, is not withoutlimitation. In the case of Canada-Patent Term，[49]the Panel examined Canada’s argumentthat Article 1. 1 permitted it to maintain a term for patent protection of 17 years countingfrom the date of grant of a patent，in spite of the minimum requirement, under Article 33and 70，of granting patent protection for a period of 20 years from the date of filing of suchapplication. The Panel noted the discretion of Members，under Article 1. 1，to determinethe appropriate method of implementing their obligations under the TRIPS Agreement, butemphasized that such discretion did not extend to choosing which obligation to complywith“…Article 33 contains an obligation concerning the earliest available date of expiryof patents，and Article 62. 2 contains a separate obligation prohibiting acquisitionprocedures which lead to unwarranted curtailment is permitted by the text of these twoprovisions. However，Article 1. 1 gives Members the freedom to determine the appropriatemethod of implementing those two specific requirements，but not to ignore eitherrequirement in order to implement another putative obligation concerning the length ofeffective protection.”[50]

The standard-of-review issue has become something of a touchstone regarding therelationship of“sovereign”concepts in the GATT/WTO rules system.　It assumed suchimportance to some negotiators that it became a‘deal breaker’-a problem that couldhave caused the entire negotiations to fail.[51]In fact，the issue of standard-of-review goesto a central problem for the future of the trading system-how to reconcile competing viewsabout the allocation of power between national governments and international institutions onmatters of vital concern to many governments，as well as the domestic constituencies ofsome of those governments.　On the one hand，economy globalisation needs effectiveinternational cooperation，which depends in part upon the willingness of sovereign states toconstrain themselves by relinquishing to international tribunals at least minimum power tointerpret treaties and articulate international obligations.　Yet，on the other hand，recognizing the necessity of such power does not lessen the importance at the national levelof decision-making expertise，democratic accountability, or institutional efficiency，nations and their citizens-and particularly those particular interests within nation-states thatare reasonably successful at influencing their national political actors-will want to maintaincontrol of the government decisions.[52]It also raises important“constitutional" questionsabout international institutions and the potential need for“checks and balances" againstmisuse or misallocation of power in and for those institutions.[53]

Probably because of its“sovereignty" sensitive，there are no detailed provisions onthe standard of review under the various WTO agreements except Article 17. 6 of the Anti-Dumping Agreement.[54]Whether the notion and jurisprudence of standard of review underthe Anti-Dumping Agreement will or should be applicable to the subject matter of otherWTO agreements，for example，TRIPS Agreement，and the enforcement provisions ofTRIPS Agreement, remains to be settled.

Intellectual property right protection is a normative-oriented issue.　Intellectualproperty rights protection involves the complicated relationship between intellectualproperty rights protection and social and economic development. Very often, intellectualproperty rights protection is regarded as part of a national development policy. Intellectualproperty protection is not conceived as protection of private rights as such，but viewed as avaluable development instrument. It has to be balanced with other development publicpolicies. In this context，a panel should defer to national government decisions relating tointellectual property rights protection. The TRIPS Agreement，however, has not clarifiedthis point. Article 11 of the DSU has only provided in general words，“a panel shouldmake an objective assessment of the matter before it, including an objective assessment ofthe facts of the case and the applicability of and conformity with the relevant coveredagreements.”[55]

In the India Patents（complaint by the United States)，[56]the Panel stated，“in orderto make an objective assessment regarding the consistency of the current Indian mechanismwith the TRIPS Agreement, as required under Article 11 of the DSU，we must askourselves the following questions：can that mechanism achieve the object and purpose ofArticle 70. 8 and thereby protect the legitimate expectations of other WTO Members，byensuring the preservation of novelty and priority in respect of products which were thesubject of mailbox applications?”[57] The Panel introduced a concept of“legitimateexpectations" which was deduced from the general good faith principle，as a base formaking an objective assessment regarding the consistency issue. Then the Panel clearlytreated the assessment of the Indian law as a matter of evidence and，did not defer toIndia’s view on the meaning of its own legal system，in particular the way Indian laws hadin fact been applied by its administrative system.[58]Though it rejected the Panel’s use oflegitimate expectations as a principle of interpretation within WTO law，the AppellateBody confirmed the Panel’s approach that panel can treat Indian laws，including its“administrative instructions" as evidence of compliance or non-compliance with TRIPSAgreement.[59]Nevertheless, it’s not clear, to what degree，the Appellate Body hasclarified the issue of standard of review or whether it was only touched upon issue ofwhether India’s laws should be treated as fact or law，and allocation of burden of proofbetween India and United States.

In the Canada-Pharmaceutical Products，however, the panel followed a ratherdeferential approach.[60]The panel report stated，“Absent of other evidence，the words ofthe statue compelled the Panel to accept Canada’s assurance that the conception waslegally available to every product that was subject to marketing approval requirements. Inreaching this conclusion，the Panel took note that its legal finding of conformity on thispoint was based on a finding as to the meaning of the Canadian law that was in turn basedon Canada’s representations as to the meaning of that law，and that this finding ofconformity would no longer be warranted if,　and to the extent that, Canada’srepresentations as to the meaning of that law were to prove wrong.”[61]#p#分页标题#e#

In substance，a certain degree of deference was accorded to Canada’s view on themeaning of its own law. The panel did not substitute its own assessment for that of thespecialists on Canadian law.[62]The reason for the different approach adopted by the Panelin this case was that the provisions in question contained elements of discretion，“suchthat the issue of whether or not they could be carried out in conformity with the WTOAgreement was essentially a question of how the Executive would choose to apply themeasure in future.”[63]

By nature，the newly added procedural and remedial rules under the TRIPSAgreement are different from substantive intellectual property rights. These enforcementprovisions are supposed to be effective against any act of infringement of intellectualproperty rights. It contains both mandatory and optional obligations.“Effectiveness" iscrucial goal to be pursued.　How to assess the“effectiveness”of the procedural andremedial rules under each Member's different social，political and legal context is not aneasy job. In this context, the panels dealing with standard of review concerning theenforcement provisions under the TRIPS Agreement will face many challenges.

Regarding the issue of burden of proof, a general principle seems to have beenestablished under the jurisprudence of the United State-Shirts and Blouses.　TheAppellate Body stated：

“…The party who asserts a fact，whether the claimant or the respondent，isresponsible for providing proof thereof. Also，it is a generally-accepted cano of evidencein civil law，common law and，in fact，most jurisdictions，that the burden of proof restsupon the party，whether complaining or defending，who asserts the affirmative of aparticular claim or defence. If that party adduces evidence sufficient to raise a presumptionthat what is claimed is true，the burden then shifts to the other party，who will fail unlessit adduces sufficient evidence to rebut the presumption"（Footnotes omitted)．[64]

In the context of TRIPS Agreement, the Panel in United States-Section 110（5）ofthe US Copyright Act（WT/DS160/R，15 June 2000) further clarified：

“…Recalling the principles set out in the Appellate Body report on United States-Shirts and Blouses，we note that the burden of proof rests upon the party，whethercomplaining or defending，who asserts the affirmative of a particular claim or defence. Ifthat party adduces evidence sufficient to raise a presumption that what is claimed is true，the burden then shifts to the other party，who will fail unless it adduces sufficient evidenceto rebut the presumption.”[65]

Accordingly，the panel reasoned that the European Communities should bear theburden of establishing a prima facie violation of the basic rights that have been providedunder the copyright provisions of the TRIPS Agreement，including its provisions that havebeen incorporated by reference from the Berne Convention（1971）．Once the EuropeanCommunities has succeeded in doing so，the burden rests with the United States toestablish that any exception or limitation is applicable and that the conditions, if any，forinvoking such exception are fulfilled.[66]Therefore，the panel concluded that it was for theEuropean Communities to present a prima facie case that Section 110 ( 5）（A) and（B）ofthe US Copyright Act was inconsistent with the provisions of the TRIPS Agreement（including those of the Berne Convention（1971）incorporated into it）．Should theEuropean Communities fail in establishing such violation，it went without saying that theUnited States would not have to invoke any justification or exception. However, the panelalso considered that the burden of proving that any exception or limitation was applicableand that any relevant conditions were met fell on the United States as the party bearing theultimate burden of proof for invoking exceptions.[67]

The burden of proof established on dichotomy of fact/claim presumes existence ofclear distinction between the fact and the legal claim under domestic laws. In practice，thecase is not always as clear as it supposed to be. As in the India-Patents case，India arguedthe Panel’s interpretation of Article 70. 8（a) entails a violation of established principlesgoverning the burden of proof, because the Panel did not assess the Indian law as a fact tobe established by the United States，but as a law to be interpreted by the Panel.[68]According to India, the Panel’s initiative contrasts with the cautious approach of previouspanels to issues of municipal law. The Panel should have followed GATT practice and givenIndia，as the author of the mailbox system，the benefit of the doubt as to the status of thatsystem under its domestic law. The Panel also should have sought guidance on the mannerin which the Indian authorities interpreted that law. India contends that the assertion by aMember that a mailbox system exists，and that it has been set up in accordance with itsdomestic law，may be displaced only by compelling evidence that the mailbox is illegal indomestic law：it is essentially for the Member itself to determine the methodology by whichit sets out the mailbox system in terms of its municipal laws.[69]

The Appellate Body observed，however,“In　public　international law，aninternational tribunal may treat municipal law in several ways. Municipal law may serve asevidence of facts and may provide evidence of state practice. However, municipal law mayalso constitute evidence of compliance or non-compliance with international obligations...In this case，the Panel was not interpreting Indian law‘as such’；rather, the Panel wasexamining Indian law solely for the purpose of determining whether India had met itsobligations under the TRIPS Agreement.”[70]

It implies WTO dispute settlement bodies enjoy discretionary competence to deal withMember State’s national laws as facts（where interpreting the law“as such"），or as legalissues（where determining whether national laws are compliance or non-compliance withinternational obligations）．Furthermore，WTO dispute settlement bodies determinewhether there exists prima facie evidence to shift the burden of proof to another party. Butit is not clear how the panels or Appellate Body should make such distinction betweenfacts，legal issues，and burden of proof decisions，and whether Members can challengesuch distinctions.

6. Doctrine of the threshold of justiciability in instituting a WTO proceeding

Given the delicate nature of enforcement provisions under the TRIPS Agreementwithin WTO system，[71]it seems proper to set forth a threshold of justiciability for potentialcases involving enforcement provisions under the TRIPS Agreement so as to avoid“wrongcases.”The Council for TRIPS，the duly constituted dispute settlement panels andAppellate Body should not be venues for intellectual property right holders to seek justicein the their private right disputes. Only governments representing private right holders’interests are allowed to initiate aWTO proceeding regarding a Member’s inadequateenforcement measures.[72]The Council for TRIPS should adopt thresholds of justiciability tomonitor implementation of enforcement procedures, [73] especially if there is a“consistentpattern of gross violations" of the relevant international minimum standards，”because“Apolicy of restraint that required complaints to show patterns of flagrant violations of dueprocess could gradually give rise to an accumulation of respected precedents that convertedthe loose enforcement standards to more concrete rules. It could also help to ensure thatinternational intellectual property laws after the TRIPS Agreement remained broadlyconsistent with the economic incentives flowing from the Uruguay Round as a whole anddid not become a product of controversial and confrontational decisions by internationaltribunals likely to breed mistrust and resentment of the World Trade Organizationitself.”[74]According to Professor J. H. Reichman，these limitation doctrines（ripeness，exhaustion of local remedies，material injury and，insistence on a pattern of flagrantviolations of due process) could attenuate the friction likely to ensue from efforts to securecompliance with the enforcement provisions of the TRIPS Agreement by preserving respectfor the overarching norm of the sovereign independence of states.[75]

7. The Cases Regarding the Enforcement Provisions of the TRIPS Agreement underthe WTO System

Before the WTO and the TRIPS Agreement，the two perceived flaws of the WIPOadministered Agreements（such as the Paris Convention，the Berne Convention) and theRome Convention（jointly with UNESCO and International Labor Office）were（a）theabsence of detailed rules on the enforcement of rights before national judicial andadministrative authorities，and（b）the absence of a binding and effective disputesettlement mechanism（for dispute between states)．Where there was a dispute concerninginternational intellectual property protection，the disputants could go to International Courtof Justice to seek judicial remedies. Although the GATT，the forerunner of the WTO，didcontain certain rules relating to intellectual property，[76]and had some jurisprudenceregarding intellectual property rights，[77]by and large，intellectual property was basicallyconsidered as an “acceptable obstacle" to free trade, at least until the Tokyo Round.[78]Inthis sense，The TRIPS Agreement is really a breakthrough tn this respect.

So far, there have a few cases directly on the enforcement provisions under TRIPSAgreement（as of 30 June 2004）．[79]For example, Denmark-Measures Affecting theEnforcement of Intellectual Property Rights，complaint by the United States（mutuallyagreed solution achieved)，[80]Sweden-Measures Affecting the Enforcement of IntellectualProperty Rights，complaint by the United States（mutually agreed solution achieved），[81]European Communities-Enforcement of Intellectual Property Rights for Motion Picturesand Television Programs, complaint by the United States（mutually agreed solutionachieved)，[82]Greece-Enforcement of Intellectual Property Rights for Motion Pictures andTelevision Programs,　Complaint by the　United States（mutually agreed solutionachieved)，[83]Argentina-Patent Protection for Pharmaceuticals and Test Data Protectionfor Agricultural Chemicals，Complaint by the United States（mutually agreed solutionachieved），[84]European Communities-Protection of Trademarks　and　GeographicalIndications for Agricultural Products and Foodstuffs，Complaints by Australia（activepanel)，[85]and United States-Section 337 of the Tariff Act of 1930 and AmendmentsThereto，Request for Consultations by the European Communities and their member States（pending consultation)．[86]All these cases can be summarized as the following table.

Compared to the number of cases under the GATT（1994），the number of casesinvolving the enforcement provisions under the TRIPS Agreement is much lower（onlyseven)，although the number of cases is much higher than that of cases involving GATS（only 2 cases)．All of the cases were disputes between or among developed countries，except one involving developing country-Argentina. Of the seven cases，five were settledin a mutually satisfactory solution，mainly through the respondents amending or promisingto amend their domestic laws to incorporate the relevant enforcement provisions of theTRIPS Agreement, such as Article 50 on provisional measures of TRIPS Agreement，intotheir domestic laws. It seems these cases do not shed much light on the jurisprudenceregarding the enforcement of the enforcement provisions of the TRIPS Agreement under theWTO system.

8. Conclusion

The rapid development of technological renovations brings us into a new era-a so-called“knowledge-based economy.”Different from industrial economy, which representedby　industrial products，“knowledge-based　economy”concentrates　on　proprietary“information"，which may be expressed as“rights" in law -such as patent，copyright，trademark right and other IP rights.　Due to its nature，proprietary information may bedifficult and expensive to create yet be easy to be copied or imitated.　　　 Proprietaryinformation also finds no physical border restriction. Along with economic globalization，which is demonstrated by the profound and growing extent of international economicinterdependence and linkage，[87]the proprietary information is highly vulnerable to beinfringed abroad.　How to effectively protect such proprietary information globally hasbecome a crucial issue. The traditional approach of diplomatic protection seems not properand not efficient. A new approach has been adopted to set forth international standards toregulate proprietary information creation，protection，and enforcement and harmonizecertain institutional, procedural，and remedial rules. Put it another way，for the purposeof effective protection of intellectual property rights, domestic governance is increasinglybecoming focus of international trade regulations.　Accordingly，the TRIPS Agreementprovides for detailed enforcement provisions for intellectual property rights.　Theseprovisions（combined with the transparency and publication requirements under Article 63of the TRIPS Agreement）relate to Members’domestic governance in the respect ofenforcement of intellectual property rights. Such a rule-oriented enforcement system ishoped to secure legal security，predictability and the avoidance of capricious and arbitrarydecisions，and may contribute to Members’the rule of law. In other words，it may beargued that a right to good governance（including right to independent，neutral,competent judiciary，right to procedural justice，right to adequate remedies，and right totransparency with respect to enforcement of intellectual property rights) is emerging underthe TRIPS Agreement.

Nevertheless，because of distinctive nature of intellectual property rights，how toeffectively enforce the TRIPS Agreement, in particular the enforcement provisions of theTRIPS Agreement under the WTO dispute settlement system is really challenging. Manynovel issues may come up before WTO dispute settlement body，such as whether thegoal( s) of the enforcement provisions of the TRIPS Agreement should be the availability ofthese provisions or effective use of these provisions. What is the cause of action，systemicfailure or an individual case failure? What are the types of remedies：violation complaintsvs. non-violation and situation complaints? What are standard of review and burden ofproof regarding the enforcement of the enforcement provisions of TRIPS Agreement? Howabout the doctrine of the threshold of justiciability in instituting a WTO proceeding?Whether these issues should be clarified through amendment to the TRIPS Agreement orthrough interpretation of panel(s) or Appellate Body? Relevant WTO jurisprudence is notvery clear with respect to all these novel issues.

【作者简介】
Nie Jianqing, Professor of Internaitonal Law Instituion of Wuhan University, Doctor of Law.

【注释】
[1]There are some enforcement measures in intellectual property international conventions beforethe TRIPS Agreement, for example, Articles 9，10, 10bis and 10ter of the Paris Convention（ParisConvention for the Protection of Industrial Property（of March 20，1883，as revised at Brussels onDecember 14，1900，at Washington on June 2，1911，at The Hague on November 6，1925，at London onJune 2，1934，at Lisbon on October 31，1958，at Stockholm on July 14，1967，and as amended onSeptember 28，1979），Article 13（3），Article 16（1）and（2），Article 36（1）（2）of the BerneConvention（Berne Convention for the Protection of Literary and Artistic Works, of September 9、, 1886，completed at Paris on May 4，1896，revised at Berlin on November 13，1908，completed at Berne onMarch 20, 1914，revised at Rome on June 2, 1928，at Brussels on June 26，1948，at Stockholm on July14，1967，and at Paris on July 24，1971，and amended on September 28，1979），Article 26（1）and(2) of the Rome Convention（International Convention for the Protection of Performers, Producers ofPhonograms and Broadcasting Organisations, done at Rome on October 26，1961）.All these provisions,however, only stipulated properly domestic implementation of relevant IP conventions, rather thanproviding detailed and specific enforcement provisions as such.
[2]Steward, Terence P. ed.，The GATT Uruguay Round: A Negotiating History（1986～1992），Volume Ⅱ：Commentary, Deventer, Boston, Kluwer Law and Taxation Publishers 1993（cited as Steward（Vol. Ⅱ）（1993)）,pp. 2249-2253.
[3]Steward, Terence P.（ed.），The GATT Uruguay Round: A Negotiating History（1986～1994)，Volume Ⅳ： The End of Game（Part 1)，The Hague，London, Boston, Kluwer Law International1997（cited as Steward（Vol. Ⅳ)（1997)），p. 539.
[4]Steward（Vol. Ⅳ）1997，p. 540.
[5]Steward（Vol. Ⅱ）1993,p. 2313.
[6]Steward（Vol. Ⅱ）1993，pp. 2309-2310.
[7]The changes were in two respects. First，the final text incorporated a provision restrictingcompulsory licensing of patents covering semiconductor technology. Second, the final text removed certainTRIPS disputes from the purview of the GATT dispute settlement mechanism for five years. See Steward（Vol. Ⅳ）1997, p. 465.
[8]Steward（Vol. Ⅱ）1993.p. 2313.
[9]Petersmann，Ernst-Ulrich，The GATT/WTO Dispute Settlement System-International Law,International Organizations and Dispute Settlement, Kluwer Law International（1997）（Cite asPetersmann “The GAT／WTO Dispute Settlement System"（1997)），p. 213.
[10]Professor Petersmann has raised many new issues, for details, see Petersmann，The GATT/WTO Dispute Settlement System，pp. 213-216（1997)
[11]Article 41（1）othe Agreement on Trade-related Aspects of Intellectual Property Rights（Citeas the TRIPS Agreement).
[12]Watal, Jayashree, Intellectual Property Rights in the WTO and Developing Countries, KluwerLaw International 2001，pp. 333-334.
[13]Please refer to Appendix A: Journal of International Law Intellectual Property Symposium, CaseWestern Reserve Journal of International Law, 32 Case W. Res. J. Int’1 L. 517，Summer, 2000，pp.518-519.
[14]Abbott, Frederick M.，WTO Dispute Settlement and the Agreement on Trade-Related Aspects ofIntellectual Property Rights，in the International Trade Law and the GATT/ WTO Dispute SettlementSystem, ed. by Ernst-Ulrich Petersmann, Kluwer Law International（Cite as Abbott“WTO DisputeSettlement and the TRIPS Agreement"（1997）），pp. 428-429（1997).
[15]Id.
[16]Id. See also The United States-Section 337 of the Tariff Act of 1930, Panel Report, adopted 7November 1989，BISD 36S/345.
[17]Id, p. 429.
[18]Article 64 of TRIPS Agreement.
[19]European Economic Community-Production Aids Granted on Canned Peaches, Canned Pears,Canned Fruit Cocktail and Dries Grapes, Panel Report, 20 February 1985，not adopted, L/5778.Japan-Trade in Semi-Conductors, Panel Report, adopted 4 May 1988，BISD 31S/94，and UnitedStates-Restrictions on the Importation of Sugar and Sugar-Containing Products Applied under the 1955Waiver and under the Headnote to the Schedule of Tariff Concessions, Panel Report, adopted 7 November1990，BISD 37S/228, See also Council for Trade-Related Aspects of Intellectual Property Rights, Non-Violation and Situation Complaints, Summary Note by the Secretariat, IP/C/W/349（19 June, 2002).
[20]The Council for Trade-Related Aspects of Intellectual Property Rights-Minutes of Meeting（Cite as IP/C/M)，IP/C/M/23，para. 111.
[21]See TRIPS Council, Non-Violation and Situation Complaints, Summary Note by the Secretariat,IP/C/W/349 ．p. 4（19 June,2002 )． #p#分页标题#e#
[22]IP/C/M/23，para. 114.
[23]IP/C/M/27，para. 177.
[24]IP/C/W7194, Appendix, Legal Basis for the Position of the US Regarding Expiration of the“Moratorium" on Non-Violation Cases, p. 7.
[25]Article XXIII：1（b）of the General Agreement on Tariffs and Trade 1994（Cite as GATT（1994)）．
[26]Article 26（1）of the Understanding on Rules and Procedures Governing the Settlement ofDisputes（Cite as DSU)．
[27]Please refer to TRIPS Council, Non-Violation and Situation Complaints, Summary Note by theSecretariat, IP/C/W/349，19 June 2002，pp. 4-17
[28]IP/C/M/27，para. 159.
[29]IP/C/M/28，para. 194.
[30]IP/C/M/27，para. 182.
[31]India-Patent Protection for Pharmaceutical and Agricultural Chemical Products-Complainedby the United States，the Appellate Body Report, WT/DS50/AB/R（Cite as India-Patent, WT/DS50/AB/R)，para. 42.
[32]Harris, D. J.，Cases and Materials on International law（fifth edition），London Sweet＆Maxwell, pp. 810-811（1998）．
[33]Id.
[34]Article 3(2) of DSU.
[35]India-Patent Protection for Pharmaceutical and Agricultural Chemical Products-Complainedby the United States, Panel Report,WT/DS50/R，adopted 16 January 1998（Cite as India-Patent,WT/DS50/R )，para. 7. 18
[36]Article XVI：1 of Marrakesh Agreement Establishing the World Trade Organization.
[37]India -Patent, WT/DS50/R，pcra. 7. 19.
[38]India-Patent, WT/DS50/R，para. 7. 20.
[39]India-Patent, WT/DS50/R, para. 7. 21.
[40]India-Patent, WT/DS50/R，para. 7. 22.
[41]Article 3 (2) of DSU.
[42]Jackson, John H.，The World Trade Organization, Constitution and Jurisprudence, The RoyalInstitute of International Affairs, p. 91（1998；rpt. 1980)．
[43]India-Patent, WT/DS50/AB/R, para. 36.
[44]India-Patent, WT/DS50/AB/R, para. 45.
[45]Werner, Jacques, The TRIPS Agreement under the Scrutiny of the WTO Dispute SettlementSystem: the Case of Patent Protection for Pharmaceutical and Agricultural Chemical Products in India,Journal of World Intellectual Property, pp. 318-319（March 1998）．
[46]How to interpret TRIPS Agreement obligations in the context of its Articles 7 and 8 seems to bea very controversial issue. For details, please refer to Howse, Robert, The Canadian Generic MedicinesPanel: A Dangerous Precedent in Dangerous Times，Journal of World Intellectual Property, pp. 493-507（July 2000)·Von Hase, Andres Moncayo, The Application and Interpretation of the Agreement on Trade-Related Aspects of Intellectual Properly Rights，in the Intellectual Property and International Trade: theTRIPS Agreement, eds. by Carlos M. Correa, Kluwer Law International, pp. 93-141（1998).
[47]Oesch，Matthias, Standards of Review in WTO Dispute Resolution, Oxford University Press（Oesch "Standards of Review in WTO Dispute Resolution" (2003）），pp. 13-14 (2003).
[48]India-Patent, WT/DS50/AB/R, para. 59.
[49]Canada-Term of Patent Protection, Panel Report, WT/DS170/R, adopted 12 October 2000（Cite as “Canada -Term of Patent Protection. WT/DS170/R"）．
[50]Canada-Term of Patent Protection, WT/DS170/R, para. 6.94.
[51]Jackson, John H.，The Jurisprudence of GATT and the WTO，Insights on Treaty Law andEconomic Relations, Cambridge University Press,（Cite as Jackson “The Jurisprudence of GATT and theWTO" (2000)），p. 135 (2000)
[52]Jackson，The Jurisprudence of GATT and the WTO, p. 158 (2000)
[53]Jackson，The Jurisprudence of GATT and the WTO, pp. 135-136 (2000)
[54]Article 17. 6 of Anti-Dumping Agreement（AD Agreement) provides the DSB in examining thematter referred to in paragraph 5：（i）in its assessment of the facts of the matter, the panel shalldetermine whether the authorities' establishment of the facts was proper and whether their evaluation ofthose facts was unbiased or objective. If the establishment of the facts was proper and the evaluation wasunbiased and objective, even though the panel might have reached a different conclusion, the evaluationshall not be overturned;（ii）the panel shall interpret the relevant provisions of the Agreement inaccordance with customary rules of interpretation of public international law. Where the panel finds that arelevant provision of the Agreement admits of more than one permissible interpretation, the panel shallfind the authorities’measure to be in conformity with the Agreement if it rests upon one of thosepermissible interpretations. In The Legal Texts, The Results of the Uruguay Round of Multilateral TradeNegotiations（hereafter the Legal Texts)，World Trade Organization, Cambridge University Press, 1999（Cite as “The Legal Texts"（1999)），p. 168. Apart from the AD Agreement, two Ministerial Decisionstaken at the final Ministerial Conference of the Uruguay Round at Marrakesh，Morocco, in April 1994，and made part of the text of the Uruguay Round Final Act are also relevant, for detail, please refer toJackson, The Jurisprudence of GATT and the WTO, pp. 140-141(2000)．
[55]Article 11oDSU.
[56]India-Patent, WT/DS50/R.
[57]India-Patent, WT/DS50/R，para. 7. 34.
[58]Oesch，Standards of Review in WTO Dispute Resolution,p. 192 (2003).
[59]India-Patent, WT/DS50/AB/R, para. 66.
[60]Canada-Patent Protection of Pharmaceutical Products, Panel Report, WT/DS114/R, adopted7 April 2000（Cite as “Canada-Patent Protection，WT/DS114/R"）．
[61]Canada-Patent Protection of Pharmaceutical Products, WT/DS114/R，para. 7. 99.
[62]Oesch，Standards of Review in WTO Dispute Resolution, p. 197 (2003）.
[63]Oesch, StandardsoReview in WTO Dispute Resolution, p. 197 (2003）
[64]United States-Measures Affecting Woven Wool Shirts and Blouses from India, adopted on 23May 1997.WT/DS33/AB/R（Cite as US-Shirts and Blouses．WT/DS33/AB/R).P. 14.
[65]United States-Section 110（5）othe US Copyright Act, Panel Report, WT/DS160/R,adopted on 27 July 2000, para. 6. 12.
[66]United States-Section 110(5）of the US Copyright Act, WT/DS160/R, para. 6. 13.
[67]United States-Section 110(5) of the US Copyright Act, WT/DS160/R, para. 6. 16.
[68]India-Patent, WT/DS50/AB/R, para. 8.
[69]India-Patent, WT/DS50/AB/R, paras. 8＆9.
[70]India-Patent, WT/DS50/AB/R, para. 66. The Permanent Court of International justice, inthe case of Certain German Interests in Polish Upper Silesia, also observed,“It might be asked whether adifficulty does not arise from the fact that the Court would have to deal with the Polish law of July 14th1920. This, however, does not appear to be the case. From the standpoint of International Law and of theCourt that is its organ, municipal laws are merely facts that express the will and constitute the activities ofStates, in the same manner as do legal decisions and administrative measures. The Court is certainly notcalled upon to interpret the Polish law as such; but there is nothing to prevent the Court’s givingjudgment on the question whether or not, in applying that law, Poland is acting in conformity with itsobligations towards Germany under the Geneva Convention.”See PCIJ, Ser. A, No.7，p. 19. Accordingto Professor Brownlie, in the practice of the International Court of Justice and other international tribunalsthe concept of “municipal law as mere facts" has six distinct aspects, as follows. (a) Municipal law maybe evidence of conduct in violation of a rule of treaty or customary law；（b) Judicial notice does not applyto matters of municipal law. The tribunal will require proof of municipal law and will hear evidence of it,and, if necessary，may undertake its own researches;（c) Interpretation of their own laws by nationalcourts is binding on an international tribunal;（d) The dicta of international tribunals（already cited) restto some extent on the assumption that, for any domestic issue of which a tribunal is seized, there mustalways be some applicable rule of municipal law, which will be ascertainable in the same way as otherfacts in the case;（e) International tribunals cannot the internal invalidity of rules of national lawsince the international legal order must respect the reserved domain of domestic jurisdiction.（f) Certainjudges of the International Court have states as a corollary of the proposition that“municipal laws aremerely facts" that an international tribunal “does not interpret national law as such.”This view is open toquestion. See Brownlie, I.，Principles of Public International Law, Oxford University Press, p. 39（1998）．
[71]Intellectual property right is a private right. Enforcement of that right largely is up to intellectualproperty right holder. The sensitive nature of procedural and remedial rules closely relates to theprevailing national infrastructures in a social, economical, political and cultural contexts. TRIPSAgreement is an international treaty which binds Members with international obligations. WTO disputesettlement system is an international mechanism used by Member States, not as a procedure used byprivate right holders.
[72]Reichman, J. H，Symposium：Intellectual Property Law in the International Marketplace:Trade-Related Aspects of Intellectual Property Rights: Enforcement and Dispute Resolution: Comment:Enforcing the Enforcement Procedures of the TRIPS Agreement，37 Virginia Journal of International Law,（Cite as Reichman “Comment"（1997)），pp. 33-5-356＆pp. 346-348(Winter, 1997）．
[73]Reichman, Comment, p. 348（1997).
[74]Reichman, Comment, p. 349（1997).
[75]Id, p. 351.
[76]ArticleⅨ(6) of the GATT, which deal with marks of origin, is relevant when considering theprotection of geographical indications. As an exception to general GATT obligations, Article XX（d) ofthe GATT allows contracting parties to adopt or enforce measures“necessary to secure compliance withlaws or regulations which are not inconsistent with the provisions of this Agreement, including thoserelating to[…]the protection of patents, trade marks, copyrights and the prevention of deceptivepractices”See “The Legal Texts" 1999，p. 455.
[77]Article IX：6 of GATT was given a restrictive interpretation in a Panel report on“Japan-Customs Duties, Taxes and Labeling Practices on Imported Wines and Alcoholic Beverages"（documentL/6216). This“general exception" to the GATT principle of promoting free trade was also invoked in twodisputes brought before GATT panels. The first one was“United States-Imports of Certain AutomotiveSpring Assemblies,”the first patent infringement case in GATT history（L/5333，adopted on May 26，1983，BISD 30S/107）．The second case is“United States-Section 337 of the Tariff Act of 1930"（L/6439 ．adopted on November 7，1989. BISD 36S/345）．
[78]During Tokyo Round, held between 1973 and 1979，trade in counterfeit（trademark) goods hadstarted to emerge as a serious issue. See Gervais, Daniel, The Emergence of the TRIPS Agreement Duringthe Uruguay Round of Multilateral Trade Negotiations in the TRIPS Agreement: Drafting History andAnalysis, p. 7（1998).
[79]Source is from WTO Secretariat, WT/DS/OV/21. The Indonesia-Autos involves indirectly theissue of enforcement of intellectual property rights regarding national treatment in the respect of acquisitionof trademark. See Panel Report on Indonesia-Autos, para. 14. 268＆paras. 14. 275 -14. 276，availablein World Trade Organization, WTO Analytical Index： Guide to WTO Law and Practice（First Edition)，Volume 2，World Trade Organization 2003，pp. 1159-1160.
[80]WT/DS83-Denmark-Measures Affecting the Enforcement of Intellectual Property Rights,complained by the United States（mutually agreed solution)．
[81]WT/DS86-Sweden-Measures Affecting the Enforcement of Intellectual Property Rights,complained by the United States（mutually agreed, solution).
[82]WT/DS124-European Communities-Enforcement of Intellectual Property Rights for MotionPictures and Television Programs, complained by the United States（mutually agreed solution)．
[83]WT/DS125-Greece- Enforcement of Intellectual Property Rights for Motion Pictures andTelevision Programs, complained by the United States（mutually agreed solution).
[84]WT/DS171-Argentina-Patent Protection for Pharmaceuticals and Test Data Protection forAgricultural Chemicals, Complaint by the United States（mutually agreed solution achieved)
[85]WT/DS290-European Communities-Protection of Trademarks and Geographical Indicationsfor Agricultural Products and Foodstuffs, Complaints by Australia（active panel).
[86]WT/DS186- United States-Section 337 of the Tariff Act of 1930 and Amendments Thereto,Request for Consultations by the European Communities and their member States（pending consultation).
[87]John H. Jackson summarizes the factors contributing to globalization as incredible advances inefficiency of communication, extraordinary reductions in transport costs, growing prevalence of instanttele- and cyber-transactions, treaty and other norms causing reduction of governmental barriers to trade,an economic climate more favorable to principles of market economics, cross-border influences ofcompetition which have driven increases in production and service efficiencies, and last but not least, theblessing of relative peace in the world. See Jackson, The Jurisprudence of GATT and the WTO，p. 3(2000)．