Intellectual Property and International Business Law - Assignment Example

?Introduction WTO indicates that sustainable development as well as protection and preservation of environment are one of its main goals. This was made fundamental because protection of environment and linking it with global trade and economics are one of the critical challenges faced by institutions like WTO to implement effectively. Though WTO claim that protecting the environment was one of the fundamental goals as it was included in Marrakesh agreement under which WTO was formed however, critics still argue that WTO lacks the power to implement the same. This therefore has remained one of the significant challenges for WTO to implement environment protection because earlier agreements such as GATT actually failed to deliver desired results in developing a comprehensive framework for environment protection. The overall importance of WTO is critical regarding establishing a link between trade and environment because it is the single most important document which governs the international trade. The growing debate therefore is focused upon the potential role of WTO in clearly establishing a link between global trade and environment. Prescription of different standards as well as the framework therefore is one of the key tasks which WTO has to perform in order to comprehensively establish the link between the two. This paper will discuss the linkages between trade and environment and how it has remained on of the important challenges for international business law. This paper will also discuss as to what steps by WTO during last decade to properly address this issue within the perspective of international trade. Environment and international trade Trade is considered as beneficial for the society and the economy and its liberalization can actually help any society to achieve greater economic resources. It is critical to understand however that with increased trade and production processes, the overall pace of economic degeneration can expedite and the results can be both negative as well as positive. Environment can be protected if cleaner technologies are implemented which involve less energy consumption besides relying more on labor intensive techniques. The environment can also be damaged because growth in production process requires more energy and raw materials and hence more environmental de-gradation can take place. There is therefore a nexus between environment and international trade and how expansion of international trade can actually result into both the protection as well as degradation of environment. (Charnovitz, 2007.) Serious efforts to actually integrate concerns for environment and international trade started during 1970s and as a result of this growing debate, an international conference in Stockholm took place to debate on the future course of defining how international trade agreements can actually affect the businesses with significant potential to damage environment. Prior to this conference, GATT undertook a study on its own behalf to determine and explore the impact of environmental protection policies on international trade. In same year, Environmental Measures and International Trade Group was established however, it remained inactive for more than two decades and it was only in during 1992 that this group was convened by members. (Charnovitz, 2007.) Subsequent legislative efforts include Tokyo round and Uruguay round went on to establish different standards and kick started the process of integrating international trade with that of the environment protection. There was also growing concerns among developing countries regarding the export of those products which were considered as environmentally damaging with serious safety and health related issues. The overall debate was therefore based upon the argument that free trade has an impact on the environment and that higher levels of free trade can further result into damage to the environment. (Charnovitz, 2007.) The recent efforts however by WTO clearly outline the way the nexus between free trade and environment. Though WTO continued from where GATT actually ended by modifying GATT. This modification however, also included a deliberate inclusion of provision to protect and conserve the resources of the world. This was the beginning towards formally starts the process of regulating the process of environment protection according to the needs and concerns at different level of development. This initial modification in the charter of WTO therefore set into motion subsequent actions which forced many other regulatory bodies including government to look for developing legislations for sustainable development. There are two important and standard agreements of WTO on the issue of environment i.e. SPS and TBT. SPS are considered as cross border measures to protect human, animal and plant life from the toxins, diseases as well as additives used in the production of finished goods. This agreement mostly deals with the food borne risks to health. TBT agreements however, are based upon the trade restrictive effects and the standards regarding packing, testing, labeling and marketing standards. It also allows each country to actually set the environment friendly laws to protect the environment. Marrakesh Agreement, under which WTO was formed however, made relatively significant changes and also attempted to make a transition from GATT as it explicitly included provisions for the protection of environment. One of the key changes during this transition was emphasis on conserving the world resources while making it in accordance with the needs and concerns of the customers. It is critical to note that almost all the agreements in WTO make an explicit connection between environment and international trade. However, there are also specific provisions which specifically deal with the environment and how governments and various other stakeholders can actually take steps to minimize the impact of trade on the environment. TRIPS, the Trade Related aspects of Intellectual Property Rights also make exception regarding environment and patents. Under this exception, member countries can actually exclude any invention which can have any potential and damaging effect on the environment. (Charnovitz, 2007.) There have been various other subsidies as well as explicit benefits offered under various WTO agreement provisions which allowed member countries to offer various incentives to companies protecting the environment. Some of these provisions remained effective for some period of time whereas some are still continuing. Over the period of last decade specially, WTO’s efforts matured to properly integrate international trade with environment protection. Committee on Trade and Environment (CTE) was also formed in 1995 after Uruguay Round Negotiators. The formation of this committee kick started the process of actually formalizing the environment protection processes within WTO. This committee has also initiated the process of involving WTO staff to write papers and reports on trade and environment in order to increase the overall level of understanding of the members requiring technical help in terms of placing appropriate measures to protect environment. WTO has also engaged into arranging public forums where public actually interacted with the members in brief sessions. These public forums have also served as one of the critical grounds for discussing environment and trade and how member countries can actually contribute towards the protection of environment. Article XX Article XX is considered as one of the most important and critical provisions regarding the avoidance of conflict and defining relationship between different branches of International law. This article actually allows members to actually apply trade measures which can be potentially against GATT. This limited freedom has been assigned in order to allocate the decision making power between national as well as international authorities. There have been very few cases which have actually emerged as a result of this conflict between the There have been however, conflicts between article XX (b) and XX (g) as no clear patterns seem to emerge. There is also a significant challenge of implied jurisdiction as well as the relationship of the section XX remains one of the key challenges for WTO to iron out.( Condon, 2005) Shrimp Turtle case is considered as one of the leading cases where WTO and the use of Article XX have been specifically made. During 1994, WTO started to receive different complaints regarding the conduct of members in shrimp export import and the impact of same on the turtles. Rather than banning the product itself, US and subsequently WTO also banned the import of shrimps due to overall production process. The production process of preparing shrimps for import and export purposes was considered as detrimental to environment as fishermen involved the process relatively ignored some of the guidelines required to ensure the conservation of environment.( Kibel.1996) Dolphin Tuna Case is also one of the leading case in this regard wherein during 1970s, dolphins and their pods were being depleted due to changes in fishing techniques for catching Tuna. Due to floor trawling, Tuna sold in US has to be labeled as Dolphin Safe however; US lost the case on two occasions due to the principles of Extraterritoriality as well as product vs process. Conclusion Over the period of last one decade or so, the efforts by WTO have matured enough to clearly establish a link between the international law and environment. Right from GATT days to the current scenario, WTO has evolved and introduced changes which have effectively ensured that member countries take efforts to mobilize resources and develop technical competence to protect the environment. By specifically including environment into its charger, WTO has taken efforts to allow member states to collaborate with different stakeholders to build mechanisms which can be implemented to improve and conserve the environment. It is also critical to note that the WTO through its various provisions and specially under Article XX has allowed member countries limited freedom in applying some trade measures regarding environment which can be effectively against GATT and can cause potential challenges for member states. Q#2 Introduction Intellectual property is considered as a controversial term setting up monopoly rights over certain products or services and which are also recognized under certain laws. One of the key reasons as to why legislators as well as other groups are advocating for intellectual property rights implementation is the achievement of absolute protection for those who put money, time and their ideas in producing a good or service. It is argued that in the modern economy, the role of intellectual capital has actually superseded the role of land, labor and capital as the factors of production. This shift towards using intellectual ideas and intelligence therefore require protection too because they are intangibles as well as can be easily copied and used for any purpose. In order to protect the domestic as well as international businesses, it is therefore considered as critical that intellectual rights of the businesses as well as individuals are protected. It is also because of the reason that intellectual property can prove as one of the strongest and most powerful engine for achieving economic growth and protection of local as well as international businesses. With the advent of economic globalization, the drive towards intellectual property and its protection has been relatively stronger. As organizations expand and grow at the international level, it has increasingly becoming important for them to ensure that their processes and ideas are protected and are not copied in order to devoid them of their rightful benefits. This question will discuss as to why intellectual property rights are necessary for international business and why they should be protected. Intellectual Property Intellectual property is applied to different things at different times and the range includes copyrights, trade secrecy, topography of industrial processes etc. It is however, important to note that not all nations recognize all the intellectual property items however most of the nations at least recognize same in order to protect international as well as national companies. Intellectual property protection, in its basic sense, actually restricts other persons and parties from using and duplicating different doctrines of intellectual property which are actually owned by and belong to a third party. Essentially intellectual property rights give rights to the things produced through mental activity and seem to protect the rights of those who spent their time and effort to actually crystalize such mental activity process and successfully develop them into commercial products. It is also important to note that until recent times, intellectual property protection was assigned in limited sense in order to provide protection in limited manner. This was done when time was short and the production of any process or service was more important. However, recent shift suggests that the organizations operating at the international level face challenges in terms of protecting what they have produced over the period of time. In international markets, products are readily duplicated thus not allowing international organizations to take rightful benefit from the goods or services produced by them and sold at the international level. Reasons and Objectives for Intellectual Property The reasons and the objectives as to why greater emphasis has been placed on the protection of intellectual property is based upon the notion of gaining full social and economic value from the product or services produced. Organizations especially in US are increasingly becoming more cognizant of the fact that being the rightful owners of the products and services produced by them, they should be entitling to the overall social and economic benefits of the same. One of the key reasons is the financial incentives because intellectual property is considered as investment. Those who invest into their intellectual property therefor require full financial incentives for the investment made. Protection of intellectual property rights at the local as well as international level is also considered as necessary in order to achieve the economic growth. It has been observed that by protecting international and local businesses, governments can actually ensure economic progress. This notion also implies that implementation of intellectual property rights actually restrict the competition and allows firms to compete without their products and services being actually copied and duplicated. There have been various studies which have specifically validated the claim that there is a strong positive correlation between economic growth and intellectual property rights protection. It has also been argued that in some cases intellectual property becomes absolute necessity in order to achieve economic growth and provide firms the required return for their research and development activities. Intellectual property therefore is considered as necessary for economic growth.( Calandrillo, 1998) Intellectual property rights protection is also justified based on moral principles as UN declaration of Human Rights provide adequate protection to the rights enjoyed from any scientific discovery or invention. Morally, intellectual property is considered as equivalent to other property and violation of intellectual property is considered as the violation of other property rights also. Morally it is argued that mind is the source of creation of all wealth therefore anything produced through mental efforts should be morally protected. Conclusion Intellectual property in its current form is a very recent phenomenon and emerged with the expansion of global trade. International trade has actually made it important for international businesses to protect their rights and their creation from being duplicated in order to derive the full benefits from them. It is critical to note that intellectual property is mostly based upon the notion of mental creation because most of the creations take place in ideas and imaginations. There are certain reasons as to why intellectual property rights should be protected and each international organization should take benefit from them. Intellectual property is considered as an investment and those who put their time, money and effort therefore are required to gain return on this investment. Any efforts to reduce this rate therefore may result into violation of intellectual property rights. It is also important to understand that intellectual property rights protection also result into economic progress and economic development. Further is therefore promising as more and more countries are becoming aware of protecting intellectual property rights. References Calandrillo, Steve P., 1998. 301 An Economic Analysis Of Intellectual Property Rights: Justifications And Problems Of Exclusive Rights, Incentives To Generate Information, And The Alternative Of A Government-Run Reward SYSTEM. Fordham Intellectual Property, Media and Entertainment Law Journal, 0, 303-360 Charnovitz, Steve, 2007. Trade and the Environment in the WTO. Journal of International Economic Law, 10, 4-30. Condon, Bradly J. , 2005. GATT Article XX and Proximity of Interest: Determining the Subject Matter of Paragraphs b and g. Forthcoming in 10 UCLA Journal of International Law and Foreign Affairs, 0, 1-38. Kibel. Paul 1996. Justice for the Sea Turtle. [ONLINE] Available at:. [Accessed 20 June 12]. Read More