Dealing with Forum Shopping : Some Lessons from the Secure Negotiations at the World Customs Organization

The article examines an initiative promoted in the area of intellectual property rights (IPRs) by the World Customs Organization (WCO), the "SECURE" best practices on customs measures in the area of IPRs. It is argued that this WCO lawmaking initiative represents a unique case of forum shopping, with the particular purpose of advancing a TRIPS-plus agenda in the area of enforcement of intellectual property rights. It is also argued that the emergence of an IPR initiative in an unexpected forum such as the WCO risks affecting critical interests of developing countries, such as in the area of trade in generic medicines.One of the features that reinforces this WCO case as an example of forum shopping is the fact that discussions on this very subject are fiercely disputed at other international settings where experts on IPRs hold a seat, such as the World Trade Organization and the World Intellectual Property Organization. In contrast, the WCO debates on these extremely complex topics were moving without adequate consideration, as they were viewed exclusively from the angle of customs - despite the fact that the SECURE draft provisions encroached upon substantive IPR rules.The article argues that developing countries' participation in defense of their interests is made difficult by the murky or non-existing rules of procedures in place at the WCO as well as by the highly unbalanced and non-transparent institutional arrangements that govern the functioning of the Organization. Based on the WCO SECURE case, the text draws lessons that can be useful for developing countries' participation in international lawmaking, one of the most crucial being the need to ensure strengthened coordination at the domestic level between officials in charge of intellectual property policy-making and customs administrations