Trade Diplomacy, the Rule of Law and the Problem of Asymmetric Risks in TRIPS

The WTO has just finished two and one half years of negotiations on the TRIPS Agreement and Public Health, with an additional tranche of negotiations scheduled to commence soon. These negotiations have been extraordinarily instructive on the subject of trade diplomacy and the means by which ends are achieved at the WTO. In my view, over this period developing countries have made significant strides in efforts to integrate and co-ordinate their trade negotiating positions. Moreover, the collective urgency of the public health negotiations created a dynamic that even today is spilling over and informing the agriculture negotiations, where a well organised group of developing Members is using their combined strength in the face of entrenched economic powers. The WTO claims to be an institution based on the rule of law. It has in the past failed to support the rule of law on behalf of its economically weaker Members. The WTO as an institution must be held to account. It is imperative that the institution assure that the Paragraph 6 agreement can be used in good faith by those who desire to use it. If the WTO is going to succeed in its mission as a rule of law-based framework for the conduct of international trade, it must put in safeguards to protect the rights and interests of its less economically and politically powerful Members. If it does not, the institution will face an accelerating crisis of legitimacy