TRIPS in Dispute: 30 Years of Intellectual Property Rights in the WTO Dispute Settlement System

1 January 2026 marks 30 years since the end of the one-year transitional period for developed country Members of the World Trade Organization (‘WTO’) to apply the provisions of the Agreement on Trade-Related Aspects of Intellectual Property Rights (‘TRIPS Agreement’). The end of the transition period also marked the beginning of a new era in the protection of intellectual property rights in public international law. The submission of intellectual property-related disputes to the WTO dispute settlement system under the Understanding on Rules and Procedures Governing the Settlement of Disputes (‘DSU’) allowed States to be held accountable for the failure to comply with the rules of public international law on the protection of intellectual property rights.

The Protection of Intellectual Property Rights in Public International Law

At the time that the TRIPS Agreement was concluded in 1994, the protection of intellectual property rights in public international law had existed for more than a century. Public international law provided for a comprehensive set of rules on minimum standards for the substantive protection of intellectual property rights in domestic legislation, and for the harmonisation of the legislation on intellectual property rights in different jurisdictions. The two major international treaties on intellectual property rights ― the Paris Convention for the Protection of Industrial Property of 20 March 1883 and the Berne Convention for the Protection of Literary and Artistic Works of 9 September 1886 ― which still form the basis of the protection of intellectual property rights in public international law, were in force since the 19^th century. During the 20^th century, dozens of new treaties on intellectual property rights were concluded at the global and continental levels, and the existing treaties were revised a number of times to improve the protection of intellectual property rights in public international law.

But despite all the achievements in the protection of intellectual property rights, public international law lacked a proper mechanism for holding States accountable for their failure to implement the provisions of the international treaties on intellectual property rights into their domestic legislations. The Brussels Act of 26 June 1948 introduced Article 27bis in the Berne Convention, which became Article 33 of its current version of the Berne Convention, to provide that ‘[a] dispute between two or more countries of the Union concerning the interpretation or application of this Convention, not settled by negotiation, shall be brought before the International Court of Justice for determination by it, unless the countries concerned agree on some other method of settlement’. With a very similar wording, the Stockholm Act of 14 July 1967 introduced Article 28 in the Paris Convention to confer jurisdiction on the International Court of Justice over ‘[any] dispute between two or more countries of the Union concerning the interpretation or application of this Convention, not settled by negotiation’.

Nevertheless, more than three quarters of a century later, no dispute concerning intellectual property rights has ever been submitted to the ICJ, a stark contrast to the number of intellectual property-related disputes submitted to the WTO dispute settlement system.

TRIPS in Dispute

Since 1 January 1996, WTO members presented a total of forty-five requests for consultations referring to the TRIPS Agreement. The United States was the first WTO member to submit a dispute concerning the TRIPS Agreement on 9 February 1996, titled Japan – Measures Concerning Sound Recordings (DS 28), one month after the TRIPS Agreement’s transitional period expired. In fact, the United States has been the WTO member with the highest number of requests for consultations referring to the TRIPS Agreement. Out of the forty-five requests for consultations referring to the TRIPS Agreement, the United States was the complainant in eighteen of them. The United States is followed by the European Union, which has appeared as complainant in eleven requests for consultations referring to the TRIPS Agreement. The European Union, on the other hand, is the WTO member with the highest number of requests for consultations referring to the TRIPS Agreement, totalling seven, followed by China, which appeared as respondent in six requests for consultations referring to the TRIPS Agreement.

Out of the forty-five requests for consultations referring to the TRIPS Agreement, nineteen were related to patents, sixteen to copyright and neighbouring rights, eleven to trademarks, six to geographical indications, one to trade secrets, and none to industrial designs.

Most of the forty-five requests for consultations were terminated by mutual agreement of the WTO members involved before the composition of panels or simply did not advance to the panel phase after the consultations were requested. Only seventeen requests for consultations led to decisions on the TRIPS Agreement issued by panels, the WTO Appellate Body or arbitral tribunals under Article 25 of the DSU. Amongst these decisions, some of them had significant relevance for the protection of intellectual property rights in public international law, including, in particular, the decisions rendered in Canada – Patent Protection of Pharmaceutical Products (DS114) and United States – Section 110(5) of US Copyright Act (DS160), which discussed the provisions allowing limitations on the rights conferred on copyrights and patents pursuant to the Three Step Test set forth in Articles 13 and 30 of the TRIPS Agreement.

Why the WTO?

The number of requests for consultations referring to the TRIPS Agreement raises the question why States opted for the WTO instead of the ICJ as the international forum for the settlement of intellectual property-related disputes. In fact, on certain occasions, States had the choice to submit the dispute to either the ICJ or the WTO. The TRIPS Agreement incorporates the main provisions of the Paris Convention and the Berne Convention, and, hence, disputes arising out of the incorporated provisions of the Paris Convention and the Berne Convention became subject to the WTO dispute settlement system. This was the case, for instance, in China – Measures Affecting the Protection and Enforcement of Intellectual Property Rights (DS362), in which the United States alleged that Chinese copyright law was inconsistent with the obligations placed on China by the Berne Convention as incorporated by the TRIPS Agreement. Both the United States and China were bound by the Berne Convention, and none of them opted to make a reservation in respect of the jurisdiction of the ICJ. The United States, however, opted to submit the dispute to the WTO and not to the ICJ.

There are different reasons that may explain why the TRIPS Agreement has led to a relatively high number of disputes being submitted to the WTO dispute settlement system, while the ICJ has never heard any dispute concerning the implementation of international treaties on intellectual property rights. One of the obvious reasons is the substantial number of States that made a reservation in respect of the jurisdiction of the ICJ under the Paris Convention and the Berne Convention. Another obvious reason is the fact that many disputes submitted by WTO members involved the European Union. Proceedings before the ICJ are limited to States. In addition, although the European Union is an original WTO member, the European Union is not a contracting party to the Paris Convention and to the Berne Convention. The membership of the Paris Convention and the Berne Convention is limited to ‘countries’.

Many disputes submitted by WTO members concerning the Paris Convention and the Berne Convention were also related to other provisions of the TRIPS Agreement as well as to other WTO agreements. This was the case, for instance, of the famous dispute in Australia – Certain Measures Concerning Trademarks and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging (DS434/DS435/DS441/DS467), in which, in addition to the TRIPS Agreement, Australia was accused of breaching the Agreement on Technical Barriers to Trade (‘TBT Agreement’). Had the dispute been submitted to the ICJ pursuant to the jurisdiction clause of the Paris Convention, the ICJ would have jurisdiction to hear the dispute pertaining to the Paris Convention only. In the WTO dispute settlement system, WTO members have the advantage, however, to present their claims on the basis of different provisions of the TRIPS Agreement and different WTO agreements.

But there are other reasons to explain the preference for the WTO. The WTO inherited a very active dispute settlement environment that was organically developed under the General Agreement on Tariffs and Trade of 30 October 1947 (‘GATT 1947’). Between 1948 and 1995, 317 requests for consultations were presented by GATT’s contracting parties, out of which fifty-four ended up with a mutually agreed solution and forty were withdrawn. 136 panel reports were issued, out of which 96 were adopted. The high number of disputes under the GATT 1947 may be explained by the consensus-based approach and informal character of the dispute settlement system organically developed since 1948. Because the GATT 1947 established no formal institutional framework and no formal dispute settlement system and any trade dispute was inevitably subject to direct negotiations amongst GATT’s contracting parties. Due to the absence of binding adjudicatory proceedings, a dispute could only be submitted to a panel if there was a consensus amongst all GATT’s contracting parties in favour of it. And even when all GATT’s contracting parties had agreed to constitute a panel to hear a dispute, the panel report would only be adopted if there was a consensus amongst all GATT’s contracting parties in favour of its adoption. This environment, marked by informality and flexibility, enabled the disputing parties to reach mutually agreed solutions and to abide by decisions rendered by panels on the basis of consensus, at the same time that it encouraged contracting parties to make requests for consultations without the fear that such requests could jeopardise the relationship amongst contracting parties.

On top of that, proceedings under the WTO dispute settlement system tend to be finally settled faster than contentious proceedings before the ICJ. Disputes submitted to panels and to the WTO Appellate Body are not meant to exceed twelve months. In addition, non-compliance with unfavourable reports may lead to consequences potentially extending beyond the subject-matter of the original dispute, which may have a severe impact even on WTO members for which the protection of intellectual property rights is not at the top of their priority list.

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The submission of intellectual property-related disputes to the WTO dispute settlement system is certainly one of the main contributions of the TRIPS Agreement to the protection of intellectual property rights in public international law. A meaningful dispute resolution mechanism meant that the implementation of the TRIPS Agreement, including the provisions of the Paris Convention and the Berne Convention incorporated by it, became effectively subject to the scrutiny of public international law. As such, the protection of intellectual property rights in public international law was not anymore subject to a fragmented reality, where, in practice, it was up to States to decide how to implement the international treaties on intellectual property rights in accordance with their own interpretation.