While developing countries have augmented their participation and influence in international discussions on intellectual property, with important attainments as a result, developments at the bilateral and regional levels, threaten to make those efforts, and those accomplishments, increasingly irrelevant. The trend of countries such as the United States turning
to bilateral and regional agreements to build on the minimum standards achieved at the international levelhas several implications for developing countries. The “TRIPS-plus” provisions are not limited to those requiring countries to implement standards more extensivethan those set out by the TRIPS Agreement.In addition,the process of forum shifting causes many of the flexibilities of the TRIPS Agreement to be eroded and many of the ongoing discussions to become foreclosed. The question of applicability of non-violation complaints in the context of intellectual property is a case in point. While it still being debated at the international level, it has been made applicable to intellectual property disputes in a number of bilateral free trade agreements with potentially serious consequences for the efforts of developing countries inthe WTO to make non-violation complaints not applicable to intellectual property.
The purpose of this note is thus to focus on non-violation complaints to exemplify the challenges faced by countries in light of trends in current international intellectual property policy setting. Section B will briefly describe the discussion as it has occurred at the international level. Section C will analyze the developments at the bilateral and regional level and the concerns they raise for developing countries. The conclusion will summarize the main points and highlight the risks of such developments for ongoing discussions at the World Trade Organization.