10.1515 - LDR 2020 0079

Law and Development Review 2021; 14(1): 215–272
Klaus D. Beiter*
Reductionist Intellectual Property
Protection and Expansionist (and
“Prodevelopment”) Competition Rules as a
Human Rights Imperative? Enhancing
Technology Transfer to the Global South
https://doi.org/10.1515/ldr-2020-0079
Published online January 5, 2021
Abstract: Increasingly, the economy of industrialised countries moves away from

being based on a multiplicity of independent innovators to one characterised by
cross-licensing and the pooling of intellectual property (IP) rights. Competition law
is accorded a more limited role. Refusals to license or restrictive licence terms are
tolerated. This paradigm emphasises the innovation at the expense of the
dissemination rationale of IP and competition law. The pressure on developing
countries is to follow suit. However, this approach jeopardises overcoming the
technology dependence of these states. Yet, the political consensus underlying the
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) was
that, in exchange for IP rights protection, a transfer and dissemination of tech-
nology benefiting the global South would occur. This has not taken place so far.
Taking this promise seriously requires according an enhanced, more social role to
competition law. Articles 8(2), 31 and 40 of TRIPS – the TRIPS competition
rules – could be interpreted in a way to accomplish this. This article argues in
favour of a “prodevelopment” approach to IP-related competition law. This could
be viewed as a demand of the rule of law at the international level. On the one
hand, treaties such as TRIPS are to be interpreted in good faith. On the other, public
interest and human rights considerations justify, as it were, require, such an
approach. Articles 7 and 8 of TRIPS can play a crucial role in this regard. They
reflect such public interest considerations as “object and purpose” of TRIPS. They
also provide a link to international human rights law (IHRL). IHRL protects a
(group) right to development, confirming “policy space” for World Trade Organi-
zation (WTO) members and the freedom to opt for a competition law model that
*Corresponding author: Klaus D. Beiter, B.Iur. LL.B. (UNISA, Pretoria), Dr. iur. (LMU Munich),
Associate Professor, Faculty of Law, North-West University, Potchefstroom, South Africa; and
Affiliated Research Fellow, Max Planck Institute for Innovation and Competition, Munich,
Germany, E-mail: Klaus.Beiter@nwu.ac.za
216 K. D. Beiter Law and Development Review
facilitates dissemination. The International Covenant on Economic, Social and

Cultural Rights (ICESCR) further protects various economic, social and cultural
rights, including the right to enjoy the benefits of scientific progress and its
applications (REBSPA). These rights may be said to give rise to “transfer and
dissemination of technology” as a human right. Duties under the right to devel-
opment and “territorial” and “extraterritorial” human rights obligations (ETOs)
under the ICESCR support an understanding of competition law which is pro
development, which takes account of local access and welfare needs. The article
concludes with a set of 10 consolidated considerations for a “prodevelopment”
IP-related competition law.
Keywords: intellectual property rights, competition law, TRIPS, Articles 7 and 8,

transfer of technology, human rights, extraterritoriality, right to development, the
right to enjoy the benefits of scientific progress and its applications (REBSPA)
1 Competition Law and the Transfer and

Dissemination of Technology
Hanns Ullrich – one of the great minds of competition law, who recently turned 90
years of age – in a book chapter of 2005, provides a very lucid account of how
approaches to competition law and its interface with intellectual property (IP) law
have moved in one direction rather than another.1 The clear tendency, he argues,
has been to strengthen the stance on co-operative innovation and to relegate the
ideal of the transfer and dissemination of technology to a rank of secondary sig-
nificance. This trend, clearly discernible in the IP and competition policies of
industrialised countries, has had an effect on (or followed from) the way the
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)2 is
construed. As the title of Hanns Ullrich’s chapter captures it, IP rights in TRIPS are
read expansively, its IP-related competition rules reductively, in favour of
1 H. Ullrich, “Expansionist Intellectual Property Protection and Reductionist Competition Rules: A

TRIPS Perspective,” in K.E. Maskus and J.H. Reichman (eds.), International Public Goods and
Transfer of Technology under a Globalized Intellectual Property Regime (Cambridge: Cambridge
University Press, 2005), pp. 726–757. The chapter has also been published as H. Ullrich, Expan-
sionist Intellectual Property Protection and Reductionist Competition Rules: A TRIPS Perspective, 7
Journal of International Economic Law, no. 2 (2004), 401–430. For quotation and citation pur-
poses, this article relies on the former.
2 Agreement on Trade-Related Aspects of Intellectual Property Rights, 15 April 1994, Marrakesh
Agreement Establishing the World Trade Organization, Annex 1C, 1869 U.N.T.S. 299 (entered into
force 1 January 1995) [hereinafter TRIPS].
Enhancing Technology Transfer to the Global South 217
innovation through high levels of IP protection, even where this negatively affects
dissemination. Why is dissemination important? It is important because it makes
possible the development of “improved, related, or complementary” technology
and because it allows for the optimal exploitation of protected technology through
inter-brand competition.3 At another level, dissemination yields benefits in the
form of improved access for consumers. Overall, dissemination promotes eco-
nomic growth. The new approach countenances a fair measure of socio-economic
collateral damage in developed countries themselves. Ultimately, it entails the
enhanced enclosure of knowledge – knowledge, in principle, being a public
good4 – obstructing access by others. This has ramifications for the market
participation of more independent producers, the interests of consumers, public
health, food security, science, education, culture and so on. Its effects for devel-
oping countries, however, as will become clear, are quite devastating.
Cross-licensing and the creation of IP right pools as co-operative arrangements
of stimulating innovation – not really substantively contemplated at the time
TRIPS was drafted – have become widespread. Although they have a strained
relationship with (more social) notions of competition, they are endorsed in the
policies of industrialised countries because of their (supposed) innovation-
enhancing effect. A natural incident of this approach is to condone a rather
uncompromising line with regard to ordinary licensing as a traditional form of
transferring and disseminating technology. It is thus considered legitimate for the
licensor to wield substantial powers. The licensor is clearly the leader, the licensee
the follower. Under this scheme, what seem anticompetitive (or otherwise “harsh”)
licensing practices readily survive scrutiny. “Transfer and dissemination of tech-
nology”, generally, may occur in various forms. It could occur by way of the
acquisition of equipment in countries of the South, imitation through reverse
engineering, the provision of technical assistance, inter alia by original equipment
suppliers, foreign direct investment, the offering of training, the supply of infor-
mation, the conclusion of turn-key agreements, the granting of contractual
licences and so on.5 When TRIPS was drafted, it was contemplated that ordinary
licensing would play a crucial role in the transfer and dissemination of IP-based
technology. Its IP-related competition rules were designed so that TRIPS countries
could rely on them to make sure transfer and dissemination would not be
3 See Ullrich (2005), supra note 1, p. 738 (referring to these two functions in the context of
addressing the effects of exclusivity for dissemination).
4 On public goods, and knowledge as a public good, see Section 4.1 infra.
5 See C.M. Correa, Trade Related Aspects of Intellectual Property Rights: A Commentary on the
TRIPS Agreement (Oxford and New York, NY: Oxford University Press, 2007), pp. 97–98 (discussing
the meaning, and mentioning these forms, of “transfer and dissemination of technology”).
unreasonably obstructed, notably in the context of ordinary licensing. However, as

pointed out, the overall perspective has changed now.
Hanns Ullrich argues – to state this in his own words:
the backward-looking focus of TRIPS competition rules on technology dissemination does not
match the actual trend of cooperation-based innovation, since, there, a level playing field
may only be established by early participation in the innovation process and by early access
to enabling information. As industrialized countries have revised their competition policy
with a view to supporting group innovation and additionally enhancing the incentives
resulting from IP protection, reliance on TRIPS competition rules as a model for domestic
antitrust law might contribute to deepening rather than overcoming the technology depen-
dence of developing countries.6
In other words, trends of concerted behaviour and concentration of market power

by the way IP rights are shared among innovators these days that have inhibitive
effects on competition – by reason of the restrictions they entail for transfer and
dissemination – are tolerated, as the benefits of innovation thus ensuing are
considered to outweigh any such inhibitive effects. From the perspective of the
developing world, this approach to competition policy is clearly problematic. For
the global South, it would be crucial that the transfer and dissemination of tech-
nology – notably through “fair” licensing – must remain a definite part of the
equation, so as to enhance access for producers and consumers and in order to
promote economic growth. Developed countries, however, exert pressure on
developing countries not to adopt technology transfer-friendly competition rules:
“[C]ountries possessing market power will have considerable leverage to push
other countries to abandon dissemination-oriented competition rules as an
impediment to investment, in exchange for access to markets”.7 The advantage for
the developed world is that it can retain control over markets in knowledge
products in the developing world and, in this way, continue benefiting from the
revenues produced.8 As Joseph Stiglitz and Andrew Charlton point out, “stronger
intellectual property protections … increase the incomes of those in the more
advanced industrial countries at the expense of those in the less advanced in-
dustrial countries”.9
6 Ullrich (2005), supra note 1, p. 727.

7 Ibid., p. 753.
8 Ibid., p. 755 (explaining that the competition rules in TRIPS were added following fears raised by
developing countries that strong IP protection entailed the “danger of external control of domestic
markets by virtue of private IP rights”).
9 J.E. Stiglitz and A. Charlton, Fair Trade For All: How Trade Can Promote Development (Oxford
and New York, NY: Oxford University Press, 2005), p. 73 (retaining the original emphasis here).
The obstacles developing countries face are of various sorts. There is not only
the reductive reading of the TRIPS competition rules propelled by developed
countries. The free trade agreements (FTAs) concluded with developing countries,
apart from generally raising IP rights protection levels, often also contain
TRIPS-plus provisions in as far as the application of competition law is concerned.
While their investment chapters (IP rights there considered to be investments)
may, in accordance with TRIPS, allow recourse to compulsory licensing to correct
anticompetitive practices, it is often stipulated that IP chapters will prevail over
investment chapters in case of “any inconsistency” between them.10 A developing
country may further face the situation where it has to prove before an FTA tribunal
that a decision to grant a compulsory licence does not amount to indirect expro-
priation.11 Apart from these external obstacles, there are also internal obstacles
related to a lack of resources, expertise and infrastructure or deficient legislation,
in developing countries.12 However, developing countries are not wholly blame-
less. As Tu Thanh Nguyen explains, often there is little understanding of the need
for co-operation between competition and IP authorities in these countries.13
Frequently, there is a total absence of any competition culture and the political will
to follow a socio-economic ideology of competition.14
TRIPS postulates the transfer and dissemination of technology as a goal of the
agreement. Article 7 of TRIPS states that IP rights protection “should contribute
to”, inter alia, “the transfer and dissemination of technology”.15 This includes
transmission that occurs across borders.16 Under TRIPS, competition law is
envisaged as a legitimate, and potent, instrument to secure that transfer and
dissemination of technology is not unjustifiably impeded. Article 8(2) is, inter alia,
to the effect that measures of competition law may “be needed” where certain
practices in relation to IP rights are considered anticompetitive because they
10 T.T. Nguyen, Competition Law, Technology Transfer and the TRIPS Agreement: Implications for
Developing Countries (Cheltenham and Northampton, MA: Edward Elgar, 2010), pp. 251–252.
11 Ibid., pp. 252–253.
12 Ibid., pp. 244–246.
13 Ibid., pp. 246–247.
14 Ibid., pp. 246.
15 TRIPS, supra note 2, art. 7.
16 That this covers the international transfer of technology is clear from various other provisions:
Article 8(2) of TRIPS expressly mentions “the international transfer of technology”, Article 40(3)
and (4) provide for consultations between WTO members in cases of anticompetitive practices in
contractual licensing impeding the transfer of technology, and Article 66(2) obliges “developed
country Members” to provide incentives to enterprises and institutions in their territories for the
purpose of promoting technology transfer to “least-developed country Members”: ibid., arts. 8(2),
40(3), (4), 66(2).
unreasonably obstruct the transfer and dissemination of technology.17 Article 40

on “the control of anti-competitive practices in contractual licences” again men-
tions practices that “may impede the transfer and dissemination of technology”.18
Consequently, under TRIPS, “the transfer and dissemination of technology”
becomes part of the logic of competition law.
In the light of IP law’s current emphasis on co-operative innovation, charac-
terised by a “reluctance [of competition law] to regulate anything short of the
excessive exercise of actual market power”,19 one may well ask, what has become
of the TRIPS goal of transfer and dissemination – and specifically of the role of
competition law in facilitating its realisation? Can pure innovation policies still be
said to be TRIPS-compliant? One should fully agree with Hanns Ullrich, where he
says that
a competition policy that views IPR-related restrictions through the lens of innovation and
incentives raises problems … [as] … this bias tends to shift the political balance between
intellectual property protection and the control of anticompetitive forms of exploiting IPRs,
which tacitly underlies [TRIPS], too much to the side of intellectual property stakeholders.20
As has also been observed elsewhere, there has been little committed research on
whether, and to what extent, the international transfer of technology provisions of
TRIPS have led to effective technology transfers.21 Indeed, one may doubt that any
noteworthy international transfer of technology has occurred under TRIPS so far.22
Accordingly, we are encountering a situation of expansionist IP protection and
reductionist competition rules.23 Should it not rather be the other way round? Even
if conceptions of the role of competition law, also as it relates to IP law, do legit-
imately vary between jurisdictions, competition law cannot, it is submitted, ignore
certain considerations of the public interest, as would often be buttressed by
human rights. This is a demand of the rule of law. As the late Lord Bingham,
regarded as one of the eminent Constitutional legal figures of our time, stated, “The
rule of law must, surely, require legal protection of such human rights as, within
17 Ibid., art. 8(2).

18 Ibid., art. 40(1).
20 Ibid., p. 755.
21 B. Mercurio, “Intellectual Property Rights, Trade, and Economic Development,” in Yong-Shik
Lee et al. (eds.), Law and Development Perspective on International Trade Law (Cambridge:
Cambridge University Press, 2011), p. 70.
22 In this regard, see also notes 243–245 and accompanying text infra.
23 Thus, Hanns Ullrich’s observation, as reflected in the title of his publication: Ullrich (2005),
supra note 1, p. 726.
that society, are seen as fundamental”.24 At the national level, state constitutions
will regularly require all law, including competition law, to comply with, and
promote, the values of a superior constitution (constitutions frequently expressly
enshrining human rights). A human rights-compliant or infused competition
law – thus the thesis here – would require a reduced reading of IP law. What,
however, is the situation at the international level? At this level, the rules of
competition law in the sphere of interface with IP law are essentially only the few
laid down in TRIPS. They will be discussed under the next heading.25
This article argues that there are obligations within and outside TRIPS that
impose restraints on a “reductionist” reading of IP-related competition law. The
effect of these restraints is to assert the transfer and dissemination of technology as
a structural (that is, in many ways indispensable) goal of competition law under
TRIPS. While one could make an economic or public goods-based argument in
support of the dissemination premise, the argument here will be more normative in
nature (although public goods can also be defined “more normatively”). The
discussion will make proposals for what I shall term a “prodevelopment” reading
of competition law.26 Essentially, this means a reading of competition law in
accordance with public interest and human rights considerations, specifically
from the perspective of the development needs of poor(er) countries. The focus will
therefore be on the IP-related competition law of developing countries and that of
developed countries to the extent that it concerns interaction with developing
countries. The obligations within and outside TRIPS embodying public interest
and human rights considerations referred to here apply with equal force to safe-
guard IP-related competition law against potential reductionism under bilateral
and plurilateral FTAs beyond TRIPS.
2 International IP-Related Competition Law? Only

TRIPS Rules
There is no international competition law that controls the anticompetitive use of
IP rights. As it were, there exists no international competition law whatsoever.
24 Lord Bingham, The Rule of Law, 66 Cambridge Law Journal, no. 1 (2007), 67–85, at 77.
25 See Section 2 infra.
26 The importance, overall, of a “prodevelopment” approach to TRIPS has previously been rec-
ognised: see P.K. Yu, TRIPS and Its Discontents, 10 Marquette Intellectual Property Law Review, no.
2 (2006), at 387–389. “[I]t is very important to interpret the TRIPs Agreement through a pro-
development lens”: ibid., at 388.
However, the TRIPS Agreement does lay down certain rules, which provide a
framework for the control by World Trade Organization (WTO) members of
anticompetitive forms of exploiting IP rights. These are contained in Articles 8(2),
31 and 40. Before providing more information on the content of these provisions,
one should first draw attention to Article 7 on “Objectives”, however. While
Article 7 will be fully quoted and its elements analysed further,27 it is important at
this point to appreciate the significance of this provision for Articles 8(2), 31 and
40. Article 7 must be seen as reflecting essential values that must guide the
interpretation of TRIPS. It notably emphasises that IP rights protection “should
contribute to” both “the promotion of technological innovation” and “the
transfer and dissemination of technology”.28 IP rights protection must therefore
pursue both these goals, which have a natural propensity to be in conflict with
one another. The need to strike a balance between these goals constitutes the
background criterion against which the competition rules of TRIPS must be
understood.
Article 8 (like Article 7) forms part of Part I on “General Provisions and Basic
Principles”. Article 8(2) stipulates:
Appropriate measures, provided that they are consistent with the provisions of this Agree-
ment, may be needed to prevent the abuse of intellectual property rights by right holders or
the resort to practices which unreasonably restrain trade or adversely affect the international
transfer of technology.29
It may be pointed out that certain bilateral FTAs expressly repeat this general rule
of TRIPS by prohibiting practices “which constitute an abuse of intellectual
property rights by rights holders, or unreasonably restrain competition”.30 Article
40 is the only article in a Section on the “Control of Anti-Competitive Practices in
Contractual Licences”. This forms part of Part II, setting out the standards con-
cerning the availability of the various IP rights for which TRIPS provides. Article
40, in its first two paragraphs, states:
27 See Section 4.2 infra.

28 TRIPS, supra note 2, art. 7. “Transfer” seems to mean the transmission of technology in a
bilateral context (e.g. licensing agreements), while “dissemination” refers to the diffusion of
innovation: see UNCTAD-ICTSD (P. Roffe, R. Meléndez-Ortiz, et al.), Resource Book on TRIPS and
Development (Cambridge: Cambridge University Press, 2005), p. 126 (note 283). In practice,
“dissemination” is often used broadly to also cover “transfer”.
29 TRIPS, supra note 2, art. 8(2). Article 8 is entitled “Principles”.
30 F.-C. Laprévote, S. Frisch, and B. Can, Competition Policy within the Context of Free Trade
Agreements (Geneva: ICTSD and Cologny/Geneva: World Economic Forum, September 2015), p. 6.
1. Members agree that some licensing practices or conditions pertaining to intellectual

property rights which restrain competition may have adverse effects on trade and may
impede the transfer and dissemination of technology.
2. Nothing in this Agreement shall prevent Members from specifying in their legislation
licensing practices or conditions that may in particular cases constitute an abuse of in-
tellectual property rights having an adverse effect on competition in the relevant market.
As provided above, a Member may adopt, consistently with the other provisions of this
Agreement, appropriate measures to prevent or control such practices, which may include
for example exclusive grantback conditions, conditions preventing challenges to validity
and coercive package licensing, in the light of the relevant laws and regulations of that
Member.31
Article 31 recognises the validity of compulsory licences in the sphere of patent

law, inter alia to correct anticompetitive practices.32
Article 8(2) is the broader provision. Article 40, as will be seen, is more
specific. Article 8(2) – Article 8 itself being entitled “Principles” – grants WTO
members a wide power to address practices of IP rights exploitation that may be
considered harmful. It covers practices that are anticompetitive, but also all other
harmful practices. As regards anticompetitive practices, it encompasses both
unilateral and bilateral anticompetitive practices. Moreover, despite the phrase
“transfer of technology” being used, the provision applies to all IP rights, not
only notably patents.33 Article 8(2) allows members to deal with three types of
situations: 1) IP right abuses, 2) practices which “unreasonably restrain trade”
and 3) practices which “adversely affect the international transfer of technol-
ogy”. The “abuse” of an IP right covers any “illegitimate use” thereof, any
“misuse”, that is, any use contrary to the objectives of IP rights protection,
anticompetitive or otherwise, as determined by a member itself.34 This is where
the relevance of Article 7 becomes apparent: Any use of IP rights that thwarts the
achievement of “the transfer and dissemination of technology” articulated in
Article 7 runs counter to the objectives of IP rights protection and, accordingly,
31 TRIPS, supra note 2, art. 40(1), (2).

32 Ibid., art. 31(b), (f), (k). See also note 45 infra.
33 UNCTAD-ICTSD (2005), supra note 28, p. 547. Sharing this view, see, e.g. Ullrich (2005), supra
note 1, p. 731; B. Conde Gallego, “Intellectual Property Rights and Competition Policy,” in C.M.
Correa (ed.), Research Handbook on the Protection of Intellectual Property under WTO Rules;
Intellectual Property in the WTO, vol. I (Cheltenham and Northampton, MA: Edward Elgar, 2010),
p. 232.
34 UNCTAD-ICTSD (2005), supra note 28, pp. 541, 548. Abuse may also exist in cases of relative or
even no market power: ibid., p. 548 (note 21).
constitutes an “abuse”.35 Practices which “unreasonably restrain trade” include

those that a member reasonably considers to be anti- rather than pro-
competitive, but also any other practices which a member reasonably holds to
be unreasonable.36 Practices could be those that negatively impact on technol-
ogy transfer. The third type of situations – practices which “adversely affect the
international transfer of technology” – refers specifically to practices other than
anticompetitive practices that negatively – as defined by a member – affect
technology transfer.37 It covers not only contractual practices, but also unilateral
conduct, for instance, the abusive refusal to license.38 It should be noted, how-
ever, that only the international, that is, cross-border transfer of technology is
covered in this category.39 Although Article 8(2) is not only concerned with
harmful conduct that is anticompetitive, what is clear from the provision is that
IP-related competition law is viewed as an important instrument in providing
protection against anticompetitive conduct that (for example) jeopardises the
national or international transfer and dissemination of technology.
Article 8(2) grants WTO members a wide discretion to take measures they
consider necessary.40 The provision does, however, formulate a consistency
requirement. “Measures” must be “consistent with the provisions of this Agree-
ment”. Though referring to measures (which could be read to mean remedies), the
requirement is rather that a member’s “substantive rules of national competition
law” reveal consistency with TRIPS.41 UNCTAD-ICTSD’s Resource Book on TRIPS
and Development broadly explains the consistency requirement as follows: TRIPS
allows each member to define its own national competition law approach. There is,
however, a minimum threshold. The consistency requirement is intended to
“prevent … an application of national competition rules that outlaw generally
accepted methods of exploiting intellectual property that TRIPS recognizes”. Its
35 This is well explained by Conde Gallego (2010), supra note 33, pp. 234–235.
36 UNCTAD-ICTSD (2005), supra note 28, pp. 548–549. Practices which “unreasonably restrain
trade” should be construed broadly to include any practice that distorts or impedes trade, even if
not anticompetitive: see Conde Gallego (2010), supra note 33, pp. 233–234.
37 UNCTAD-ICTSD (2005), supra note 28, p. 549.
38 Ibid., pp. 549–550.
39 Ibid., p. 550. Practices which negatively affect domestic technology transfer not otherwise
falling within the ambit of Article 8(2) may, therefore, be regulated free from constraints entailed
by the requirements of consistency and proportionality of measures: ibid. On these, see immedi-
ately infra.
40 See notes 62–63 and accompanying text infra.
41 UNCTAD-ICTSD (2005), supra note 28, pp. 550–551.
rationale is therefore to ensure competition laws do not systematically develop in a

way as to generally curtail IP rights protection. Competition laws must remain
within their proper purpose of safeguarding competition. Yet, the definition of
what constitutes safeguarding competition is for states to determine.42 Shielding
the core of IP rights, as a matter of principle, does make sense. In as far as tech-
nological innovation is concerned, IP rights must be assumed to serve as an
incentive that may lead to innovation and – inter alia through voluntary
licensing – to dissemination.43 “Prodevelopment” considerations, it should be
underlined, do not deny this. The use of the words “appropriate measures” may be
“needed” in Article 8(2) makes it clear that there is additionally a proportionality
requirement that remedies must meet. TRIPS leaves the choice of remedies to
members. They must decide which remedies they consider adequate – they may
provide for ex ante or ex post control, by administrative agencies or courts, in terms
of administrative, tort and/or criminal law.44 Remedies may be injunctions,
damages, fines and/or compulsory licences.45 However, whatever remedies are
chosen, they must not be excessive as to “unnecessarily put the intellectual
property altogether in jeopardy”.46
42 Ibid., pp. 551–552. See also F.M. Abbott, “Right to Health: The ‘Rule of Reason’ and the Right to
Health: Integrating Human Rights and Competition Principles in the Context of TRIPS,” in T.
Cottier, J. Pauwelyn, and E. Bürgi Bonanomi (eds.), Human Rights and International Trade (Oxford
and New York, NY: Oxford University Press, 2005), p. 286 (“competition law should not be used as
a disguised mechanism for undermining the basic rights accorded under the Agreement”); Ullrich
(2005), supra note 1, p. 736 (the consistency requirement does not create “a standard of evaluation”
for restrictive practices, but only “a safety zone for the core of intellectual property protection”; it is
“a caveat against an excessive exercise of competition policy”; competition law may not be used
“as a pretext to undermine the protection of IPRs”).
43 Although the overall picture remains diffuse, certain experimental research shows that
incentives structured to include a relatively high creativity threshold – thus patents, but not
copyright – may have a positive effect on creativity: see C. Buccafusco, Z.C. Burns, J.C. Fromer, and
C.J. Sprigman, Experimental Tests of Intellectual Property Laws’ Creativity Thresholds, 92 Texas Law
Review, no. 7 (2014), 1921–1979, at 1971–1972. Copyright may at least be seen as rewarding authors
as creators of knowledge. It may also benefit dissemination.
45 Abbott (2005), supra note 42, p. 287. In as far as competition law-based compulsory licences are
concerned – at any rate, this is the case in the field of patents – WTO members may provide that
right holders need not be approached for consent, licences need not be granted predominantly for
the supply of the domestic market and the award of a licence may entail reduced remuneration to
correct anticompetitive practices: TRIPS, supra note 2, art. 31(k), (b), (f).
Article 40 is a lex specialis provision. It concretises Article 8(2). It allows

members to control harmful practices, but it is only applicable to the licensing of
IP rights,47 and then only where practices are harmful from the perspective of
competition policy.48 Even though Article 40(1) again solely uses the language
of “technology” and Article 40(2) mentions examples of abuse that point to
especially patents, the provision – forming a coda to Part II, which enumerates
all IP rights under TRIPS – applies to licensing of any kind of IP rights covered by
TRIPS, including, for example, copyright and trademarks.49 The construction
of Article 40 by UNCTAD-ICTSD’s Resource Book is that, while Article 40(1)
reflects an acknowledgement by members that certain anticompetitive licensing
practices – namely those that either “have adverse effects on trade” or “impede
the transfer and dissemination of technology” – require regulation, Article 40(2)
grants them the competence to regulate these by way of legislation.50 The pro-
cedural provisions of Article 40(3) and (4), which provide for possible consul-
tations between members in cases of alleged violations in relation to the
protected subject matter of Article 40, make it further clear that transfer of
technology for purposes of Article 40 means the international transfer of tech-
nology only.51 Beatriz Conde Gallego argues that Article 40(2), by virtue of its
broad reference to “abuse of intellectual property rights” (and no reference to
“technology”), is wider than Article 40(1) and permits the regulation of any form
of anticompetitive abuse in contractual licences, also that which “more generally
run[s] counter to the goal of promoting innovation and of diffusing [any kind of]
knowledge and preserving access to it”.52 This writer submits that there are
sound reasons nowadays to interpret the references to “technology” in Articles
7, 8 and 40 (or also in the Preamble) of TRIPS as including not only techno-
logical, but any kind of knowledge. In many ways, the rather unintended
omission of any reference to knowledge in a broader sense may be considered
“cured” by the formulations used in subsequent international texts of relevance
to the IP law field. For example, Paragraph 42 of the Geneva Declaration of
Principles, adopted by the World Summit on the Information Society in
December 2003, states that:
47 Ibid., pp. 554, 556.

48 Ibid., pp. 554, 557.
49 Ibid., p. 556; Ullrich (2005), supra note 1, p. 731; Conde Gallego (2010), supra note 33, p. 240.
50 UNCTAD-ICTSD (2005), supra note 28, pp. 557 et seq.
51 Ibid., pp. 557–558. This should, however, be construed liberally. Ownership of a local enter-
prise by a foreign direct investor, for example, would be sufficient. Ibid.
52 Conde Gallego (2010), supra note 33, pp. 242–243 (emphases added).
Intellectual Property protection is important to encourage innovation and creativity in the

Information Society; similarly, the wide dissemination, diffusion, and sharing of knowledge
is important to encourage innovation and creativity.53
All references to “technology” in this article should be read with this consideration
in mind. This can, however, only be elaborated on further at a future point.
Harmful “licensing practices or conditions” for purposes of Article 40 have been
held to include refusals to license, the discriminatory grant of licences or
discriminatory or otherwise restrictive licence terms.54 Others contend that
including practices such as refusals to license or the discriminatory grant of li-
cences under Article 40 “overstretches” the ambit of that provision, as this focuses
on the content of licence contracts.55 It is clear, however, that these practices
would certainly be covered under Article 8(2).
Like Article 8, Article 40 grants states wide powers of regulation.56 This is
subject to the same standards of consistency and proportionality referred to
earlier.57 Hence, subject to preserving the essence of IP rights under TRIPS, states
may determine what constitutes an abuse.58 The instances of potential abuse
mentioned in Article 40(2) are mere examples in this regard.59 The reference in
Article 40(2) to “particular cases” that constitute an abuse signifies, however, that
practices must be clearly defined.60 Similarly, subject to not putting IP rights in
jeopardy altogether, states are free to determine the nature of remedies.61
53 WSIS, Declaration of Principles: Building the Information Society: A Global Challenge in the New
Millennium, World Summit on the Information Society, Geneva 2003 – Tunis 2005, WSIS-03/
GENEVA/DOC/4-E (12 December 2003), para. 42. In accordance with Article 31(3)(c) of the Vienna
Convention on the Law of Treaties, TRIPS, including those of its provisions that are (ostensibly)
unambiguous, must be read “harmoniously” with other relevant – it is submitted sometimes also
non-binding – rules of international law applicable in the relations between the parties. Vienna
Convention on the Law of Treaties, 23 May 1969, 1155 U.N.T.S. 331 (entered into force 27 January
1980), art. 31(3)(c) [hereinafter also VCLT]. On such “harmonious reading”, and “systemic inte-
gration”, see Section 4.3 infra. On the relevance of non-binding rules of international law in this
context, see note 159 and accompanying text infra.
54 UNCTAD-ICTSD (2005), supra note 28, p. 556 (“all conduct surrounding the grant and the
execution of licenses” is covered). Sharing this view, see Correa (2007), supra note 5, p. 399.
55 Conde Gallego (2010), supra note 33, pp. 240–241. Sharing this view, see M. Ricolfi, Is there an
Antitrust Antidote against IP Overprotection within TRIPs?, 10 Marquette Intellectual Property Law
Review, no. 2 (2006), at 311.
56 See notes 62–63 and accompanying text infra.
58 Ibid., pp. 559–560.
59 Ibid., p. 560.
60 Ibid., p. 559.
61 Ibid., p. 560.
This brief overview of Articles 8(2), 31 and 40 demonstrates the role TRIPS accords
IP-related competition law in facilitating “the transfer and dissemination of technol-
ogy”. Bearing in mind the normative significance of Article 7 – the provision, as
pointed out, underlining that IP rights protection should contribute to both the
promotion of technological innovation and the transfer and dissemination of tech-
nology – it becomes very clear that, under TRIPS, IP-related competition law is
conceived of as an instrument that may help achieve balance between these two goals.
IP-related competition law can be a corrective to IP rights protection that focuses on
innovation, but neglects dissemination. WTO members are accorded a wide discretion
in their endeavour of striking the balance. As a respected commentator has observed,
“[t]he present situation under the TRIPS Agreement provides WTO members with
substantial discretion in the development and application of competition rules”.62
They may provide for per se rules and/or a rule of reason analysis.63 Per se rules would
be beneficial to especially developing countries, as the per se approach reduces delays
and transaction costs in assessing facts that are indicative of restrictive conduct.
Against a lack of resources and infrastructure in these countries, a rule of reason
analysis tends to favour foreign-based companies.64
However, if Articles 8(2) and 40 establish a freedom to regulate, do they also
impose a duty to regulate? UNCTAD-ICTSD’s Resource Book maintains that at least
Article 40 creates a “minimum obligation to act”. Because in terms of Article 40(1)
members “agree” that some licensing practices, because they are anticompetitive,
may have negative effects on trade and technology transfer, Article 40(2) must be
read as creating an obligation to regulate these, seeing that they run directly
counter to the goals of Article 7.65 Conde Gallego contends that on this reading,
Article 8(2) would also have to be read as creating obligations. Ultimately, it
similarly reflects the consensus of members that restrictive practices, also those
beyond the contractual context, may be detrimental to the transfer of technology
as a goal under Article 7. Since TRIPS included IP-related competition rules as a
mere concession to developing countries, they do not create an obligation to act,
she argues.66 Hanns Ullrich agrees with the latter point and holds that “these rules
cannot, by way of interpretation, be transformed into affirmative obligations”.67
62 F.M. Abbott, Are the Competition Rules in the WTO TRIPS Agreement Adequate?, 7 Journal of
International Economic Law, no. 3 (2004), at 687. See also UNCTAD-ICTSD (2005), supra note 28,
p. 128 (“TRIPS does not place significant limitations on the authority of WTO Members to take
steps to control anticompetitive practices”).
63 See Abbott (2005), supra note 42, pp. 289–294 (discussing both these options).
64 Ibid., p. 291.
66 Conde Gallego (2010), supra note 33, p. 243.
67 Ullrich (2005), supra note 1, pp. 733–734.
Article 40 “does not directly seek to ensure realization of the technology transfer
objective set out in article 7, it merely promotes the attainment of that goal by resort
to the rules of competition law governing domestic markets”. As it were, alongside
the granting of “ordinary” compulsory licences and allowing parallel imports,
competition law constituted a third “sphere of national policymaking”.68
Yet, many authors agree that an obligation to act would be desirable. Josef
Drexl states that “[t]he TRIPS system would have to be complemented by an
obligation of WTO members to introduce competition laws prohibiting restraints of
competition in licensing agreements and abuses of dominant positions based on IP
laws”.69 Conde Gallego argues that the voluntary IP-related competition rules of
TRIPS should be transformed into positive obligations.70 Abbe Brown, as also
Annette Kur and Marianne Levin, recommended amendments of TRIPS which
recognise that “[a]ppropriate measures will [not may] be needed”,71 or that mem-
bers “shall” provide for measures.72 However, does an obligation to apply
IP-related competition law in support of the dissemination objective not exist
already? On a “prodevelopment” reading of competition rules, such an obligation
may perhaps be said to exist already. This will be elaborated on in the course of this
article.
3 A Shift of Balance: From Competition to

Innovation Policy
Formerly, patents would relate to a manufacturing process or a concrete device.
This distinction has become blurred in times when IP rights protection relates to
disembodied technologies as such. Inventions are not transformed into goods that
can be sold anymore, where, following sale, rights are exhausted and trade is
68 Ibid., p. 739.
69 J. Drexl, “The Critical Role of Competition Law in Preserving Public Goods in Conflict with
Intellectual Property Rights,” in K.E. Maskus and J.H. Reichman (eds.), International Public Goods
and Transfer of Technology under a Globalized Intellectual Property Regime (Cambridge: Cambridge
University Press, 2005), p. 724.
71 A.E.L. Brown, Intellectual Property, Human Rights and Competition: Access to Essential Inno-
vation and Technology (Cheltenham and Northampton, MA: Edward Elgar, 2012), p. 197 (revised
art. 8(2)).
72 A. Kur and M. Levin (eds.), Intellectual Property Rights in a Fair World Trade System: Proposals
for Reform of TRIPS (Cheltenham and Northampton, MA: Edward Elgar, 2011), pp. 467, 552
(“Members are not only free, but also obliged, to take action” (new art. 8b)), pp. 507, 600 (“The
proposed rule is binding … as to the goal to be attained” (revised art. 40(2))).
“freed”. Rather, technology is now licensed as a service in the form of, or in

connection with, computer software and databases. This means that all IP rights
exploitation can now be controlled contractually, creating a situation where the
patentee enjoys a position of perfect exclusivity. Hence, the new reality is one of a
wholesale privatisation of technological knowledge. In this context, a refusal to
license is obviously more worrisome than it was in the time of tangibly embodied
technology.73
Simultaneously, the economy has moved away from being based on a multi-
plicity of independent innovators to one characterised by cross-licensing and
innovators pooling IP rights. With IP rights becoming ever more interdependent, this
strategy facilitates easier access to needed technology, reduces transaction costs and
promotes combined efforts at further innovation, in this way enhancing overall
innovation efficiency. In combination with the reality that IP rights protection
increasingly relates to technologies as such, the situation thus arises where various
economic actors acting together attain positions of significant market power. Such
market power has come to be seen as the foundation for innovation. In this scheme
of things, competition law will only (be allowed to) address the most excessive
exercises of market power. A natural consequence of this strategy is a restrictive
approach to traditional bilateral licensing. With licensors holding positions of sig-
nificant power, the licensee will clearly be a mere follower, licensors imposing
arrangements in terms of which ensuing innovation opportunities and profits will
substantially promote their own advantage. This actually induces the licensee to
rather “join in” and co-operate with the licensor’s projects. Again, it is considered
that this would be beneficial for further innovation. Also in this respect, therefore,
conduct that restrains competition is seen as advancing innovation.74
TRIPS had envisaged IP rights protection promoting innovation and leading to
a transfer and dissemination of technology. Competition law was (allowed) to play
a role in safeguarding this balance. However, what we see is the balance tilting
73 The description in this paragraph is broadly based on Ullrich (2005), supra note 1, pp. 741–744
(“technology as a product”). For similar observations, see K.E. Maskus and J.H. Reichman, “The
Globalization of Private Knowledge Goods and the Privatization of Global Public Goods”, in K.E.
Maskus and J.H. Reichman (eds.), International Public Goods and Transfer of Technology under a
Globalized Intellectual Property Regime (Cambridge: Cambridge University Press, 2005), pp. 20–23
(“cutting-edge technologies … fit imperfectly within the classical patent and copyright para-
digms”; extending the system to these has been accompanied by an unprecedented “ratcheting up
of intellectual property standards”, a “protectionist environment”, and a “shrinking public
domain”).
74 Also this paragraph condenses topics addressed by Ullrich (2005), supra note 1, pp. 744–748,
750–752 (pooling, cross-licensing, “from competition policy to innovation policy”, a restrictive
view of traditional licensing).
profoundly towards the incentive rationale. Of course, each country remains free in
principle to formulate its own competition laws. Yet, for as long as most indus-
trialised countries follow the “new creed”, it will not yield any beneficial outcome
for developing countries to apply competition law in a more assertive manner.
Innovators would simply choose their licensees elsewhere.75 Hanns Ullrich
observes:
The end result tends to undermine the political balance that was struck by the TRIPS nego-
tiations. Competition law, rightly or wrongly, had been looked upon as a counterweight, and
as a means of enabling third parties to participate in the benefits of “adequate” intellectual
property protection, in particular by safeguarding “the transfer and dissemination of tech-
nology,” an objective set out in article 7 of the Agreement. Suddenly, under the new
dispensation, competition law turns out to support the exploitation of exclusive rights and
innovation in general. The technological and competitive position of rights holders, the bulk
of which reside in industrialized countries, is accordingly strengthened.76
4 Reasserting the Balance: A “Prodevelopment”

Understanding of Competition Law
4.1 The Objectives of Competition Law, Public Goods and
Human Rights
What are the intrinsic objectives of competition law? In its strictest sense, competi-
tion law is intended to secure the functioning of the market, by ensuring a level
playing field between competitors. The natural competitive process should be
allowed to unfold. Distortions thereof must be prevented, but the legitimate
strengthening of an economic position should be accepted.77 In practice, however,
countries envisage a variety of objectives for competition law, and, overall, there is
no agreement as to the extent to which these should, or should not, be held to be part
of the rationale of competition law. The following have thus been mentioned as
potential aims of competition law: ensuring an effective competitive process,
enhancing efficiency, promoting consumer welfare and consumer choice and pur-
suing market integration.78 In as far as economic efficiency (leading to economic
75 Ibid., p. 752 (pointing out this dilemma).

76 Ibid.
77 In this sense, see V. Torti, Intellectual Property Rights and Competition in Standard Setting:
Objectives and Tensions (Abingdon and New York, NY: Routledge, 2015), p. 11.
78 Ibid., ch. 1.
welfare) is concerned, this may be understood in a “dynamic” or “static” sense. The

former is more producer-oriented and focuses on innovation (“stronger” IP protec-
tion), the latter more consumer-oriented and seeks to ensure the availability of a type
of product at lower prices (“weaker” IP protection).79 While developed countries
tend to pursue dynamic efficiency, static efficiency is appropriate for developing
countries.80 Strong IP protection here does not lead to innovation as it increases the
costs for follow-on innovators and consumers beyond what the typical market in a
developing country can afford. Hence, the intervention of competition law in
querying the refusal of a licence will be more readily acceptable here – as it would
not subvert the functionality of IP rights – than in a developed country, where
markets are sufficiently robust to undergo self-correction. Competition law may
legitimately have more social aims. Josef Drexl says that, while competition law
“aims at equal freedoms for all economic agents”, it should be a “social institution”
by having a “consumer orientation”.81 Marco Ricolfi suggests that, in the same way
as industrialised countries did prior to the neoliberal era, developing countries may
pursue “fairness” as an aim of competition law: “fairness concerns have tradition-
ally been part and parcel of what we initially conceived as antitrust goals”.82 Jerome
Reichman recommends that IP-related competition law in developing countries
should pursue a combination of the aims of efficiency and fairness.83 Frederick
Abbott goes so far as to state that consumer protection is the principal objective of
competition law.84
With the advent of TRIPS, the objectives of competition law now clearly – by
virtue of Articles 7, 8(2), 31 and 40 – include the promotion of innovation and the
transfer and dissemination of technology. To the extent that these objectives are
not already intrinsic goals of competition law, they have at any rate become
“extrinsic” goals of competition law under TRIPS. If the discussion so far
emphasised the dissemination goal of competition law, it should be remembered
that competition law also plays a role in promoting innovation. As Ricolfi explains,
“preserving access to technological knowledge by subsequent generations of
79 For a good explanation of the concepts, see Conde Gallego (2010), supra note 33, pp. 255–256.
80 For a lucid explanation of the point, see ibid., pp. 256–259.
81 J. Drexl, “Competition Law as Part of the European Constitution,” in A. von Bogdandy and J.
Bast (eds.), Principles of European Constitutional Law (Oxford and Portland, OR: Hart Publishing,
2006), pp. 660–662.
82 Ricolfi (2006), supra note 55, at 335, (quotation at) 353.
83 J.H. Reichman, “Intellectual Property in the Twenty-First Century: Will the Developing
Countries Lead or Follow?,” in M. Cimoli et al. (eds.), Intellectual Property Rights: Legal and
Economic Challenges for Development (Oxford and New York, NY: Oxford University Press, 2014),
p. 132.
84 Abbott (2005), supra note 42, p. 289.
innovators … preserve[s] competitive openness in downstream innovation mar-

kets … [and] keep[s] the innovation engine working”.85
The drafting history and the structure of TRIPS reveal that it is based on a
political consensus. Developing states were prepared to agree to standards of IP
rights protection being proscribed if this was counterbalanced by a commitment of
developed states to ensure IP rights protection would lead to a transfer and
dissemination of technology benefiting developing states. Competition law was to
constitute a potential instrument to secure implementation of the commitment.
The TRIPS provisions on competition policy were a concession by the developed to
the developing world.86 Yet, as has been noted, “the weight of these concessions
should not be underestimated”.87 The issue of technology transfer was of crucial
importance to developing countries. This must be understood against the back-
ground of developing countries’ unsuccessful battle for the adoption of an Inter-
national Code of Conduct on the Transfer of Technology within the United Nations
Conference on Trade and Development (UNCTAD) in the first half of the 1980s.88
With such a political consensus underlying the agreement, one would argue that it
should also be implemented. Especially in the light of the fact that, as indicated
earlier, no noteworthy international transfer of technology seems to have occurred
under TRIPS so far,89 a “prodevelopment” interpretation of TRIPS, including of its
provisions on the control of anticompetitive uses of IP rights, should be adopted.
This means that IP-related competition law must be accorded an enhanced
status under TRIPS. On the one hand, this follows from the “pacta sunt servanda”
maxim. Treaties must be performed in good faith,90 that is, an implementation of a
treaty that gives effect to its object and purpose must be preferred to any other
implementation that does not.91 As a learned scholar has said, if the global IP regime
does not, in accordance with Article 7 of TRIPS, lead to a transfer of technology
as envisaged, one may have to “revisit” and “complement” TRIPS obligations.92
85 Ricolfi (2006), supra note 55, at 328.

86 Pointing this out, see Ullrich (2005), supra note 1, pp. 730, 733–734, 739. See also D. Gervais,
The TRIPS Agreement: Drafting History and Analysis (4th ed., London: Sweet & Maxwell, 2012), pp.
240, 552–553.
88 For detail on the negotiating history also illustrating these aspects, see P.K. Yu, The Objectives and
Principles of the Trips Agreement, 46 Houston Law Review, no. 4 (2009), at 1000–1003; UNCTAD-ICTSD
(2005), supra note 28, pp. 120–125, 543–546; Gervais (2012), supra note 86, pp. 235–241, 547–557.
89 In this regard, see notes 21–22 & 243–245 and accompanying text.
90 VCLT, supra note 53, art. 26.
91 K. Schmalenbach, “Article 26: Pacta sunt servanda,” in O. Dörr and K. Schmalenbach (eds.), Vienna
Convention on the Law of Treaties: A Commentary (2nd ed., Berlin: Springer, 2018), p. 483, para. 46.
92 K.E. Maskus, Encouraging International Technology Transfer (Geneva: UNCTAD-ICTSD, Issue
Paper No. 7, May 2004), at 30.
An “honest” approach therefore requires attention being given to the status of

competition rules. “Pacta sunt servanda” could be described as an element of the
rule of law in a more structural sense at the global level. On the other hand, an
enhanced, more social status of competition law is, as explained right at the outset,
and as is the focus of the discussion here, a matter of obeying the rule of law in a
more normative sense (observing human rights values) at the global level.93
What does a “prodevelopment” interpretation entail? How can it be realised?
An argument can be made on economic grounds. Notably, one can argue from the
theory of “knowledge” as a public good. Certain goods are of such importance to
everyone that they should be available and accessible to all, that is, they should be
“non-rivalrous” and “non-exclusive” (respectively) – they are public goods.94 In
principle, this includes knowledge, technological or otherwise, as may typically be
protected by IP rights.95 IP rights make public goods private (“club”) goods – in
other words, goods access to which is excluded for many or most others, all those
not paying to be granted rights of access. This is justified to the (limited) extent that
this serves the purpose of stimulating creativity and innovation or, perhaps, of
rewarding authors. Beyond these functions, however, access to knowledge must
be strictly protected. Competition law can assume a crucial function in safe-
guarding knowledge as a public good – in keeping private regulation of what
should be a resource open to all within bounds.96 Global public goods are those
goods which are needed by persons everywhere in the world. Knowledge, tech-
nological or otherwise, is a global public good.97 Ensuring the availability and
93 See Section 1 supra (note 24 and accompanying text) and the discussion that follows.
94 For a definition of “public goods”, see I. Kaul, I. Grunberg, and M.A. Stern, “Defining Global
Public Goods”, in I. Kaul, I. Grunberg, and M.A. Stern (eds.), Global Public Goods: International
Cooperation in the 21st Century (New York, NY: Oxford University Press, 1999), pp. 2–19.
95 “Knowledge is perhaps the clearest example of a public good”: E. Zedillo, T. Thiam, et al.,
Meeting Global Challenges: International Cooperation in the National Interest: Report of the Inter-
national Task Force on Global Public Goods (Stockholm: International Task Force on Global Public
Goods, 2006), p. 65.
96 See Ullrich (2005), supra note 1, p. 728 (“Competition law … responds to fears that private
ordering might otherwise unduly encroach on what ought to remain a free resource for inde-
pendent innovation”). For a discussion of the role of competition law in preserving public goods in
conflict with IP rights, see Drexl (2005), supra note 69, pp. 709–725.
97 See, e.g. A. Jerichow, “The Right to Know,” in E.A. Andersen and B. Lindsnaes (eds.), Towards
New Global Strategies: Public Goods and Human Rights (Leiden and Boston, MA: Martinus Nijhoff
Publishers, Brill, 2007), pp. 311–325. Addressing knowledge as a global public good specifically in
the context of IP rights protection, see, e.g. M. Chon, Intellectual Property and the Development
Divide, 27 Cardozo Law Review, no. 6 (2006), at 2894–2900; J.E. Stiglitz, “Knowledge as a Global
Public Good,” in I. Kaul, I. Grunberg, and M.A. Stern (eds.), Global Public Goods: International
Cooperation in the 21st Century (New York, NY: Oxford University Press, 1999), pp. 308–325;
Maskus and Reichman (2005), supra note 73, pp. 3–45, especially pp. 8–11.
accessibility of knowledge globally becomes a serious challenge where such

knowledge is concentrated and enclosed in the global North by reason of IP rights
held by right holders there, but where that knowledge is also needed in the global
South. Keith Maskus and Jerome Reichman thus note that a few powerful corporate
actors in industrialised countries, who are not necessarily particularly innovative
themselves, control the global distribution of knowledge. They effectively
constitute a “knowledge cartel”. The governments of developed countries rigor-
ously protect the interests of these corporate actors.98
TRIPS was supposed to guarantee the international transfer of knowledge.
Competition law can play a crucial role in facilitating transfer and dissemination.
This would be supported by the fact that the effect of restrictions of IP rights
protection in local markets on the global incentive function of IP rights is negli-
gible. The inability of consumers in developing countries to pay means that income
losses remain insignificant.99 As Josef Drexl points out,
[i]n line with the concept of global public goods, competition law promotes economic effi-
ciency and distributive justice, and it serves political – freedom-oriented – ends. Competition
law and policy should accordingly be analyzed as a possible instrument for promoting the
provision of global public goods in conflict with IPRs.100
This supports a “prodevelopment” role of IP-related competition law under TRIPS

and clearly recognises the latter as a potential instrument to control anticompet-
itive forms of exploiting IP rights detrimental to the transfer and dissemination of
knowledge. Competition law in its currently dominant, reductive rendering as
rules that should aid a pure innovation policy will evidently not be able to fulfil this
function.
In certain ways related to this “public goods” line of reasoning in favour of a
“prodevelopment” reading of TRIPS competition rules, the argument, in what
follows, will be more decidedly normative in nature, broadly based on public
interest or human rights considerations.101 The suggestions that will be made in a
98 Maskus and Reichman (2005), supra note 73, p. 19; for the field of copyright, see P.G. Altbach,
The Subtle Inequalities of Copyright, 8 The Acquisitions Librarian, no. 15 (1996), at 20–21 (“There
is a kind of OPEC of knowledge”).
99 See Drexl (2005), supra note 69, p. 725 (“negligible income losses to the right holders”; access
“will not affect competition or prices in other markets”).
100 Ibid., p. 724.
101 On the connection, see L. Lindholt and B. Lindsnæs, “On Human Rights,” in E.A. Andersen
and B. Lindsnaes (eds.), Towards New Global Strategies: Public Goods and Human Rights (Leiden
and Boston, MA: Martinus Nijhoff Publishers, Brill, 2007), p. 67 (“human rights and global public
goods are closely interconnected”; a difference between the two concepts is that human rights
have been concretised by international legal norms).
sense seek to concretise the demands of the (normative) rule of law in respect of
TRIPS competition law. There should be a conscious application of the rules of
treaty interpretation of international law, as reflected in the Vienna Convention on
the Law of Treaties. Articles 31 and 32 (aspects of the former relied on here) codify
customary international law and, as such, apply with regard to WTO law. Hence,
TRIPS must be interpreted in the light of its object and purpose. It must further be
interpreted in the context of other relevant rules of international law applicable
between the parties. These rules include those of international human rights law
(IHRL). Articles 7 and 8 of TRIPS are of special significance in this regard. They give
expression to public interest considerations as TRIPS goals and, through their
human rights-friendly language, provide a link to IHRL. Human rights of impor-
tance in this respect are the right to development and, generally, economic, social
and cultural rights – including notably the right to benefit from science – as
embodying technology transfer as a human right.
4.2 Articles 7 and 8 of TRIPS and the Object and Purpose of a

Treaty
A treaty shall be interpreted in good faith in accordance with
the ordinary meaning to be given to the terms of the treaty in
their context and in the light of its object and purpose.102
Article 7 of TRIPS, entitled “Objectives”, states:
The protection and enforcement of intellectual property rights should contribute to the
promotion of technological innovation and to the transfer and dissemination of technology,
to the mutual advantage of producers and users of technological knowledge and in a manner
conducive to social and economic welfare, and to a balance of rights and obligations.103
Article 8 of TRIPS is entitled “Principles”. Article 8(2) has been quoted earlier.104
Article 8(1) states:
Members may, in formulating or amending their laws and regulations, adopt measures
necessary to protect public health and nutrition, and to promote the public interest in sectors
of vital importance to their socio-economic and technological development, provided that
such measures are consistent with the provisions of this Agreement.105
102 Vienna Convention on the Law of Treaties, supra note 53, art. 31(1) (emphasis added).
103 TRIPS, supra note 2, art. 7.
104 See text accompanying note 29 supra.
105 TRIPS, supra note 2, art. 8(1).
Surely, Articles 7 and 8 must fulfil a function.106 Article 31(1) of the Vienna
Convention restates (in part) the general rule of treaty interpretation of interna-
tional law. In accordance with the last element of Article 31(1), the TRIPS Agree-
ment must be interpreted “in the light of its object and purpose”. Articles 7 and 8
give clear expression to that “object and purpose” – this is one of the crucial
functions of Articles 7 and 8.107 Although the “object and purpose” play a role
especially where treaty provisions are broad or ambiguous,108 it needs to be kept in
mind that, because the interpretation of a treaty is “a single combined opera-
tion”,109 the “object and purpose” must also be taken into consideration when
treaty terms are (or seem) clear.
While Article 7 mentions five distinguishable aims – the promotion of tech-
nological innovation; the transfer and dissemination of technology; the produc-
tion and use of technological knowledge; social and economic welfare; and a
balance of rights and obligations110 – an overview of their overall significance must
106 Not according to them a function would be contrary to Articles 26 and 31(1) of the Vienna
Convention, which require treaties to be performed and interpreted “in good faith”, respectively:
VCLT, supra note 53, arts. 26, 31(1). Marco Ricolfi thus underlines that Articles 7 and 8 should be
“taken seriously”: Ricolfi (2006), supra note 55, at 325–327.
107 Various commentators have emphasised that TRIPS must be interpreted in the light of its
“object and purpose” and that Articles 7 and 8 (together with the Preamble) articulate that “object
and purpose”: see, e.g. S. Frankel, WTO Application of the Customary Rules of Interpretation of
Public International Law to Intellectual Property, 46 Virginia Journal of International Law, no. 2
(2006), at 392, 397; D.B. Barbosa, M. Chon, and A. Moncayo von Hase, Slouching towards Devel-
opment in International Intellectual Property, 2007 Michigan State Law Review, no. 1 (2007), at 109;
Yu (2009), supra note 88, at 1020–1022; A. Slade, The Objectives and Principles of the WTO TRIPS
Agreement: A Detailed Anatomy, 53 Osgoode Hall Law Journal, no. 3 (2016), at 951; Correa (2007),
supra note 5, p. 93; Gervais (2012), supra note 86, p. 230; H. Grosse Ruse-Khan, The Protection of
Intellectual Property in International Law (Oxford and New York, NY: Oxford University Press,
2016), paras. 13.28, 13.53. Also the WTO’s own Doha Declaration on the TRIPS Agreement and
Public Health of 2011 reiterates this: WTO, Ministerial Conference, [Doha] Declaration on the TRIPS
Agreement and Public Health, adopted on 14 November 2001, WT/MIN(01)/DEC/2 (20 November
2001), para. 5(a); and so does WTO jurisprudence: WTO, Canada – Patent Protection of Pharma-
ceutical Products, Report of the Panel, WT/DS114/R (17 March 2000), para. 7.26; WTO, Australia –
Certain Measures Concerning Trademarks, Geographical Indications and Other Plain Packaging
Requirements Applicable to Tobacco Products and Packaging, Report of the Panel, WT/DS435/R,
WT/DS441/R, WT/DS458/R, WT/DS467/R (28 June 2018), para. 7.2402.
108 See Yu (2009), supra note 88, at 1022 (“even more important in light of the many ambi-
guities built into the TRIPS Agreement”); Grosse Ruse-Khan (2016), supra note 107, para. 13.28
(“[e]specially in cases of ambiguity, of broad and open treaty language”).
109 International Law Commission, Draft Articles on the Law of Treaties with Commentaries,
Article 27: General Rule of Interpretation [now VCLT, art. 31], Commentary, Introduction, para. 8,
reproduced in Yearbook of the International Law Commission (1966, vol. II), at 219–220.
110 See Yu (2009), supra note 88, at 1000 (identifying these five aims).
suffice here.111 Article 7 makes it clear that IP rights “are not an end in themselves.”112
They must contribute to the promotion of technological innovation, but also to the
transfer and dissemination of technology. IP rights will not automatically promote
technological innovation. Practical innovation has a stronger link with basic
research conducted in universities and research institutions, (heavily) funded by the
state, than with innovative endeavours spurred by any IP rights granted.113 Some-
times, patents may stifle innovation, for instance, in the cases of upstream science
outcomes, research tools or overbroad claims.114 Referring to a number of empirical
studies, Peter Yu further points out that the relationship between IP rights protection
and foreign direct investment as a basis for innovation is at least ambiguous. A
country’s overall investment climate seems much more relevant to foreign direct
investment decisions than the strength of IP rights protection.115 Similarly, IP rights
protection does not automatically lead to a transfer and dissemination of technol-
ogy. This is a strong argument in support of IP-related competition law being rec-
ognised as an instrument that may help achieve transfer and dissemination. Article
7, it may be noted, uses the term “should” rather than “shall contribute”. Carlos
Correa has an interesting take on the use of the word “should”. Rather than con-
firming a “soft” obligation, it gives expression to the fact that the grant of IP rights
does not by itself precipitate a transfer and dissemination of technology. The word
“should” makes it clear that the grant of IP rights must occur in such a manner as to
ensure such an effect.116 Article 7 is not a mere hortatory provision – ultimately, it is
contained in the body of the TRIPS Agreement.117
Article 7 assertively calls for this balance to be struck in a way that “more widely
promotes social and economic welfare”.118 It thus becomes “a general safeguard
against a one-sided approach to IP protection”.119 Balancing the promotion of
innovation with the transfer and dissemination of technology effectively also
111 For detailed analyses of Articles 7 and 8, see Yu (2009), supra note 88, 979–1046; Slade (2016),
supra note 107, 948-998; Grosse Ruse-Khan (2016), supra note 107, ch. 13.
113 Stiglitz and Charlton (2005), supra note 9, p. 142.
114 Correa (2007), supra note 5, p. 96.
115 Yu (2009), supra note 88, at 1005–1006. In the absence of political stability, functioning legal
institutions, subsidies to attract foreign investors, educated manpower and so on, IP rights will not
lead to innovation through foreign investment: see D. Gervais, Of Clusters and Assumptions: Inno-
vation as Part of a Full TRIPS Implementation, 77 Fordham Law Review, no. 5 (2009), at 2374–2376.
“By themselves, intellectual property rules arguably benefit mostly major owners of intellectual
property, who are largely concentrated in a few highly industrialized countries”: ibid., at 2371.
117 Gervais (2012), supra note 86, p. 230.
118 UNCTAD-ICTSD (2005), supra note 28, p. 126 (emphasis added).
119 Grosse Ruse-Khan (2016), supra note 107, para. 13.39.
requires a balance between the interests of “producers” and “users” of technological

knowledge (as expressly mentioned in Article 7) and further the rights and obliga-
tions of IP right holders (also covered by Article 7).120 The importance of balancing
the interests of producers and users of technological knowledge becomes clear if it is
borne in mind that in developing countries there are mostly users of technological
knowledge121 (and the producers are mostly in developed countries). “Users” should
be construed widely to cover not only producers of goods and services that utilise
technology but also final consumers.122 Very important, the idea of balancing im-
plies “policy space” for states in the implementation of TRIPS to ensure IP rights
protection takes account of national needs.123 As such, it legitimises adequate
recourse by WTO members to flexibilities available under TRIPS, such as compul-
sory licences or parallel imports, but also measures of competition law to control
what such members consider anticompetitive practices.
Article 8 fulfils a similar function as Article 7, referring however to specific
action WTO members may take.124 Article 8(2) has been discussed earlier.125 Article
8(1) allows WTO members to adopt “measures necessary” to protect “the public
interest” in “sectors of vital importance to their socio-economic and technological
development”. Article 8 “confirms the broad and unfettered discretion that
Members have to pursue public policy objectives”.126 Both Article 8(1) and (2) do,
however, contain a clause, requiring measures to be “consistent with” the pro-
visions of TRIPS. Peter Yu considers this to “have created the perverse effect of
privileging intellectual property protection over other, arguably more important,
socioeconomic goals”.127 Yet, one should also not forget that even this proviso
should be read in the light of the clear object and purpose of TRIPS reflected in
Articles 7 and 8.128 Graeme Dinwoodie and Rochelle Dreyfuss read the “puzzling”
proviso as, in fact, “confirm[ing] that the Agreement as a whole is flexible and
furnishes states with considerable room to maneuver in order to further the varied
interests set out in Article 8”.129 It has been stated earlier that the consistency
120 Similarly, see ibid.

123 In this sense, see also G.B. Dinwoodie and R.C. Dreyfuss, A Neofederalist Vision of TRIPS: The
Resilience of the International Intellectual Property Regime (Oxford and New York, NY: Oxford
University Press, 2012), p. 110; Grosse Ruse-Khan (2016), supra note 107, paras. 13.41, 13.44.
124 Gervais (2012), supra note 86, p. 237.
125 See Section 2 supra.
126 Correa (2007), supra note 5, p. 108. Agreeing, Dinwoodie and Dreyfuss (2012), supra note 123,
p. 110; Grosse Ruse-Khan (2016), supra note 107, para. 13.10.
127 Yu (2009), supra note 88, at 1015.
128 In this sense, see also Correa (2007), supra note 5, p. 110.
129 Dinwoodie and Dreyfuss (2012), supra note 123, p. 111.
requirement should solely be read as a protection against excesses undermining IP

rights protection.130
Consequently, Articles 7 and 8, and the “object and purpose” of TRIPS reflected
therein, must inform the interpretation of TRIPS. Both articles express binding
public interest, one could even say human rights-inspired, considerations. They
support perspectives of a “prodevelopment” reading of TRIPS and its competition
rules in Articles 8(2), 31 and 40. Hence, IP rights must promote the transfer and
dissemination of technology, thereby furthering socio-economic welfare. WTO
members must recognise the role IP-related competition law can play in this context.
The normative force of Articles 7 and 8 in this respect may be stated to exist at least at
three levels. Firstly, a reading of the TRIPS competition rules in the light of the
objectives of Articles 7 and 8 yields the conclusion: “policy space” with regard to the
application of competition law does exist. Secondly, Articles 7 and 8 accordingly
defend a recourse by WTO members to competition law as an instrument to counter
anticompetitive practices in exploiting IP rights that obstruct transfer and dissemi-
nation. In many instances, the provisions can thus help protect the “policy space” of
states. Thirdly, Articles 7 and 8 may also be relied on to justify a bold interpretation of
TRIPS competition rules. As long as IP rights are not undermined in their essence,
WTO members may accord a prominent role to competition law in addressing what
they consider abuses of dominance in the form of, for example, refusals to license or
the charging of excessive prices for IP-protected products. Here, Articles 7 and 8 are
used to create or enhance “policy space”.131 Daniel Gervais has described the rele-
vance of specifically Article 7 as follows: It “could be invoked to limit an obligation to
protect or enforce a given intellectual property right where no promotion of intel-
lectual innovation and/or transfer or dissemination of technology can be shown to
exist”.132 While it may be difficult to prove empirically that there is “no promotion”, it
is the notion of “policy space” that provides the basis for a state to argue that an
obligation under TRIPS to protect an IP right should be limited, where relevant also
through competition law. It should perhaps be reiterated here that, beyond the
application of competition law, reading Article 8(2) (as such) in the light of the
objectives of Articles 7 and 8, it is clear that WTO members likewise enjoy “policy
space” to regulate practices other than anticompetitive practices that negatively
affect the transfer and dissemination of technology. In all three of the
130 See notes 40–42 and accompanying text supra.

131 These three functions come close to what Peter Yu considers the uses of Articles 7 and 8 as
“guiding light”, “shield” and “sword”, respectively (although Yu views the use as a “sword” to also
cover other “offensive” (assertive) uses of Articles 7 and 8 not implicated here): Yu (2009), supra
note 88, at 1020–1034.
132 Gervais (2012), supra note 86, pp. 229–230.
aforementioned normative dimensions buttressing IP-related competition law,

Articles 7 and 8 apply to FTAs beyond TRIPS as well. Ultimately, Articles 7 and 8 are “a
shield against aggressive expansion of intellectual property rights and demands for
‘TRIPS-plus’ protections”133 and intended to inspire models on which international
negotiations for the conclusion of FTAs are to be based.134 TRIPS, as a system, does
not permit individual members to contract out of Articles 7 and 8!
Some questions with regard to Articles 7 and 8, and the “object and purpose”
of TRIPS reflected therein, remain. If the TRIPS competition rules were a conces-
sion by the developed to the developing world, can Articles 7 and 8 be relied on to
oblige WTO members to utilise competition law as a means of facilitating the
transfer and dissemination of technology? On a more general level, can Articles 7
and 8 serve as the source for an obligation considered desirable, but for which
there is perhaps only a scant foundation in TRIPS provisions? In other words, to
what extent, if any, do Articles 7 and 8 have any independent normative force?
Most authors hold that Articles 7 and 8 operate only in conjunction with other
TRIPS provisions. Hence, Articles 7 and 8 have been described as “transversal
interpretation clauses”,135 or it has been said that they are to be applied in a
“vectorial reading of TRIPS”.136 Henning Grosse Ruse-Khan states that “Article 8(1)
… only plays a role in interpreting and implementing the specific conditions in, for
example, Articles 10, 13, 17, 20, 26(2), 27, 30, 31, and 40 TRIPS”.137 A related
question is: Can Articles 7 and 8 be relied on to found a right (to apply a limitation)
contrary to an express provision? Hence, could Articles 7 and 8, for instance, in
some cases, justify a reliance on competition law even if “such measures are [not]
consistent with the provisions of this Agreement”? Christophe Geiger and Luc
Desaunettes-Barbero express the common view that Articles 7 and 8 cannot lead to
“exceptions of direct applicability”.138 Interestingly, however, Ruth Okediji has
proposed an international fair use clause in the field of copyright, constructed on
the basis of Article 7, that would protect the validity of US-style fair use clauses,
which, in her view, do not comply with the three-step test of Article 13 of TRIPS.139 If
133 Yu (2009), supra note 88, at 1019.

134 Ibid., at 1027.
135 C. Geiger and L. Desaunettes-Barbero, “The Revitalisation of the Object and Purpose of the
TRIPS Agreement: The Plain Packaging Decision and the Awakening of the TRIPS Flexibility
Clauses,” in J. Griffiths and T. Mylly (eds.), Global Intellectual Property Protection and New
Constitutionalism (Oxford: Oxford University Press, forthcoming).
136 Barbosa et al. (2007), supra note 107, at 106–113.
137 Grosse Ruse-Khan (2016), supra note 107, para. 13.29.
138 Geiger and Desaunettes-Barbero, supra note 135.
139 R. Okediji, Toward an International Fair Use Doctrine, 39 Columbia Journal of Transnational
Law, no. 1 (2000), 75–175, at 117–123, 141, 174.
the latter assumption of non-compliance was correct, then this constructs a limi-
tation of rights contrary to an express provision (Article 13) on the basis of Article 7.
All these questions deserve further enquiry. In this article, the (first) question of the
duty to regulate will be reverted to – however, from the perspective of human
rights – in Section 4.6.
4.3 Articles 7 and 8 of TRIPS and “Systemic Integration”

When interpreting a treaty, there shall be taken into account,
together with the context of treaty terms, any relevant rules of
international law applicable in the relations between the
parties.140
Value-laden as they are, Articles 7 and 8 of TRIPS should also function as a “bridge”
connecting the WTO’s IP regime with all other rules of international law that are
implicated by the protection of IP rights.141 In this way, they help operationalising the
requirement of Article 31(3)(c) of the Vienna Convention that, when interpreting a
treaty, consideration must be given to the “context” of treaty terms, this context
including “any relevant rules of international law applicable in the relations between
the parties”. Article 31(3)(c) gives expression to the idea of “systemic integration” in
international law. This entails that, whenever the provision of a “self-contained
regime”, such as TRIPS/WTO law, even if (seemingly) unambiguous, needs to be
interpreted, there must be an attempt at a harmonious reading, which seeks to un-
derstand the provision concerned in the light of all other applicable (including
potentially conflicting) norms of general international law and those of other “self-
contained regimes”.142 In other words, when interpreting TRIPS, international human
rights obligations would have to be considered too. It should also be remembered that
140 Vienna Convention on the Law of Treaties, supra note 53, art. 31(3)(c) (wording slightly
adapted).
141 See Yu (2009), supra note 88, at 1039–1041 (specifically using the metaphor of the “bridge”).
See also UNCTAD-ICTSD (2005), supra note 28, p. 130 (“it will be useful to establish the supportive
links between the objectives and principles stated in Articles 7 and 8, and the objectives and
principles of other international instruments”).
142 “In international law, there is a strong presumption against normative conflict”: M. Kos-
kenniemi, Fragmentation of International Law: Difficulties Arising from the Diversification and
Expansion of International Law, Report of the Study Group of the International Law Commission,
U.N. Doc. A/CN.4/L.682 (13 April 2006), para. 37. For a detailed discussion of “systemic integra-
tion” in international law, see ibid., parts B.4 and F. of the report. See also J. Pauwelyn, Conflict of
Norms in Public International Law: How WTO Law Relates to Other Rules of International Law
(Cambridge: Cambridge University Press, 2003), pp. 253–272.
a harmonious reading is to take into account the “normative force” of contending

norms.143 This may potentially add weight to human rights norms.
This idea is already expressed in Article 7 itself, which mentions “a balance of
rights and obligations” as an objective of TRIPS. This refers not only to the rights and
obligations of IP right holders under TRIPS, but also to rights and obligations which
WTO members have assumed in the context of various international regulatory
frameworks.144 Articles 7 and 8, by reason of their position within TRIPS, their raison
d’être and the language they use, establish a link with all other international
instruments that promote economic development, social welfare and the transfer
and dissemination of technology. An instrument coming to mind immediately is the
International Covenant on Economic, Social and Cultural Rights (ICESCR) of 1966.145
The Covenant is the most important international human rights treaty protecting
economic, social and cultural rights. It protects human rights to food, health, edu-
cation, to take part in cultural life, to enjoy the benefits of scientific progress and its
applications and so on – all these being rights of access to economic, social and
cultural goods, naturally imposing restraints on, or requiring restraints to be
imposed on, IP rights. With its 171 states parties (including China, but not the United
States), the Covenant enjoys almost universal acceptance.146 International law
further recognises a human right to development. Articles 7 and 8 provide a porous
surface through which all these norms may osmotically seep into the regulatory
framework of TRIPS and inspire the interpretation of TRIPS rules.
The rule of “systemic integration” of treaty interpretation plays a crucial role in
maintaining the overall integrity of the international law system, functioning as a
buffer against its (further) fragmentation. Henning Grosse Ruse-Khan accordingly
describes Articles 7 and 8 as “general principles for integration”, as “relevant
tool[s] for integrating the interests and objectives pursued in other international
agreements and for facilitating mutual coherence between their norms and
TRIPS”.147 In the competition law context, Frederick Abbott has thus suggested
143 See Koskenniemi (2006), supra note 142, paras. 473–474 (referring to “the weight” of the
obligations).
144 In this sense, see also Slade (2016), supra note 107, at 972.
145 International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993
U.N.T.S. 3 (entered into force 3 January 1976) [hereinafter ICESCR].
146 Status of ratification as on 12 December 2020, see United Nations Treaty Collection, Status of
Treaties, available at: <https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-
3&chapter=4>.
147 Grosse Ruse-Khan (2016), supra note 107, para. 13.44, and generally ch. 13. Similarly, R.
Howse, The Canadian Generic Medicines Panel: A Dangerous Precedent in Dangerous Times, 3
Journal of World Intellectual Property, no. 4 (2000), at 502, 504–505 (Article 8(1) serves to include
considerations of “world health policy”).
that the implicit references to consumer protection in TRIPS (for example, in Article
8(2)) may ideally serve to include human rights considerations in any “rule of
reason” analysis.148 Along similar lines, Beatriz Conde Gallego argues that Articles
7 and 8 allow human rights to validate an interpretation of TRIPS competition rules
that helps advance “human development”.149
Naturally, human rights will claim more than being rules just like any other
to be taken into account in a “harmonised reading”. Joost Pauwelyn has pointed
out that, in the case of interpretation under Article 31(3)(c), external norms can
only assist in giving meaning to terms used in a treaty, but cannot overrule
them.150 A potential danger with a harmonious reading is, as known scholars of
international law have noted, that it “can also result in a reduction of the scope of
human rights obligations to the point where they merely exist in name”.151
Accordingly, do human rights have a special status then? Martti Koskenniemi
notes in his famous “fragmentation report” for the International Law Commis-
sion that “self-contained regimes” (leges speciali) cannot “contract out” of gen-
eral international law (lex generalis) “if obligations of general law are of ‘integral’
or ‘interdependent’ nature, have erga omnes character or practice has created a
legitimate expectation of non-derogation”.152 Many human rights might have
become strict (“non-dispositive”) rules of general international law – rules that
cannot be “contracted out” of.153 Non-compliance with these would therefore
seriously undermine the legitimacy of a “self-contained regime”. Because of
these considerations, the next three headings will be presented as headings in
their own right and not just as subheadings of this one. The next heading looks at
the right to development, the one thereafter at technology transfer as a human
right. Obligations under these rights should influence the interpretation of TRIPS.
The heading of technology transfer will give specific attention to extraterritorial
148 Abbott (2005), supra note 42, pp. 291–294. Generally arguing that Articles 7 and 8 serve to take
international human rights law into account when interpreting TRIPS, see Geiger and Desaunettes-
Barbero, supra note 135.
150 Pauwelyn (2003), supra note 142, p. 254.
151 E. de Wet and J. Vidmar, “Conclusions,” in E. de Wet and J. Vidmar (eds.), Hierarchy in
International Law: The Place of Human Rights (Oxford: Oxford University Press, 2012), p. 309.
152 Koskenniemi (2006), supra note 142, para. 154.
153 This writer has suggested elsewhere that some human rights and certain of their extraterri-
torial dimensions might – in the form of custom or “general principles” in the sense of Article
38(1)(b) and (c) of the Statute of the International Court of Justice, respectively – have become
“non-dispositive” rules of general international law: see K.D. Beiter, Not the African Copyright
Pirate is Perverse, But the Situation in which (S)He Lives: Textbooks for Education, Extraterritorial
Human Rights Obligations, and Constitutionalization “From Below” in IP Law, 26 Buffalo Human
Rights Law Review (2019–2020), at 71–77.
human rights obligations in the sphere of the transfer of technology. The last
heading in this section assesses the implications of these rights for competition
law by deducing relevant human rights obligations of states.
4.4 The Right to Development

The right to development is an inalienable human right.154
International law recognises a human right to development.155 The U.N. General

Assembly formally proclaimed this by adopting the U.N. Declaration on the Right
to Development in 1986.156 The Declaration is a soft law instrument.157 Yet, it enjoys
considerable support in the U.N.158 When the Vienna Convention refers to “rules of
international law” that are applicable in the relations between the parties, it
strictly speaking means binding international law. Nonetheless, in practice, a
broader approach is often taken. A leading commentary on the Vienna Convention
thus notes affirmatively that parts of international judicial practice apply this
154 U.N. General Assembly, Declaration on the Right to Development, General Assembly Reso-
lution 41/128, adopted 4 December 1986, U.N. Doc. A/RES/41/128, art. 1(1).
155 On the right to development, in lieu of many sources, see, e.g. A. Sengupta, On the Theory and
Practice of the Right to Development, 24 Human Rights Quarterly, no. 4 (2002), 837–889; B.A.
Andreassen and S.P. Marks (eds.), Development as a Human Right: Legal, Political and Economic
Dimensions (2nd ed., Antwerp and Portland, OR: Intersentia, 2010); K. Iqbal, The Right to Devel-
opment in International Law: The Case of Pakistan (London and New York, NY: Routledge, 2010),
parts I, II; I.D. Bunn, The Right to Development and International Economic Law: Legal and Moral
Dimensions (Oxford: Hart Publishing, 2012); K. de Feyter, Towards a Framework Convention on the
Right to Development (Dialogue on Globalization, Geneva: Friedrich-Ebert-Stiftung, April 2013); S.
P. Marks and S. Puvimanasinghe (eds.), Realizing the Right to Development: Essays in Commem-
oration of 25 Years of the United Nations Declaration on the Right to Development (New York, NY and
Geneva: United Nations and U.N. Office of the High Commissioner for Human Rights, 2013); T.
Karimova, Human Rights and Development in International Law (London and New York, NY:
Routledge, 2016), pp. 87–120.
156 Declaration on the Right to Development, supra note 154. The first formal mention of the right
was in Resolution 4 (XXXIII) of the U.N. Commission on Human Rights, adopted on 21 February
1977.
157 See, e.g. De Feyter (2013), supra note 155, p. 4 (being the reason why the author proposes that a
framework convention on the right to development be drawn up).
158 See N. Schrijver, “Many Roads Lead to Rome: How to Arrive at a Legally Binding Instrument
on the Right to Development?,” in S.P. Marks (ed.), Implementing the Right to Development: The
Role of International Law (Geneva: Friedrich-Ebert-Stiftung, 2008), p. 127 (making this
observation).
condition less restrictively and consider non-binding documents as material

relevant for interpretation.159 In any case, even though the Declaration constitutes
soft law, many aspects of the right to development have become binding law by
virtue of their inclusion in binding treaties. For example, the ICESCR includes the
collective right to self-determination, the obligation of international co-operation
and, of course, all economic, social and cultural rights, all of these being part of the
right to development.160
Article 1(1) of the Declaration defines the right to development as the “human
right by virtue of which every human person and all peoples are entitled to
participate in, contribute to, and enjoy economic, social, cultural and political
development, in which all human rights and fundamental freedoms can be fully
realized”.161 A notable feature of the right is that it (also) accrues to “nations”
vis-á-vis other states, encompassing claims to “joint, mutually agreed action by
States”, amongst others within international organisations.162 This means that
WTO member states, including all developing member states, are holders of the
right to development vis-à-vis other, notably developed WTO member states.163
The right to development is a right to “a process of development” centred around
the concept of equity and justice progressively leading to improved levels of
159 O. Dörr, “Article 31: General Rule of Interpretation,” in O. Dörr and K. Schmalenbach
(eds.), Vienna Convention on the Law of Treaties: A Commentary (2nd ed., Berlin: Springer,
2018), pp. 608–609, para. 100.
160 Affirming that the ICESCR incorporates fundamental components of the right to development,
see U.N. Committee on Economic, Social and Cultural Rights, Statement on the Importance and
Relevance of the Right to Development, adopted on the occasion of the twenty-fifth anniversary of
the Declaration on the Right to Development, U.N. Doc. E/C.12/2011/2 (12 July 2011), paras. 3, 5, 7; S.
Alfarargi, Report of the Special Rapporteur on the Right to Development, U.N. Doc. A/HRC/36/49 (2
August 2017), para. 10. It should also be noted that, even if this only concerns African states, Article
22 of the African Charter on Human and Peoples’ Rights lays down a binding right of “peoples” to
development: African [Banjul] Charter on Human and Peoples’ Rights, 27 June 1981, 1520 U.N.T.S.
217, 21 I.L.M. 58 (entered into force 21 October 1986), art. 22. See C. Baldwin and C. Morel, “Group
Rights,” in M. Evans and R. Murray (eds.), The African Charter on Human and Peoples’ Rights: The
System in Practice 1986–2006 (2nd ed., Cambridge: Cambridge University Press, 2008), p. 270
(“The African Charter … codif[ies] a legally binding right to development”).
161 Declaration on the Right to Development, supra note 154, art. 1(1).
162 De Feyter (2013), supra note 155, p. 5. The right also accrues to distinguishable groups such as
indigenous peoples within a state vis-à-vis their own state: enforced as such by the African
Commission on Human and Peoples’ Rights in Centre for Minority Rights Development (Kenya) and
Minority Rights Group (on behalf of Endorois Welfare Council) v. Kenya, 276/03, 25 November 2009.
163 The Declaration states that “States have the duty to co-operate” and “to take steps, individ-
ually and collectively”: Declaration on the Right to Development, supra note 154, arts. 3(3), 4(1),
respectively. The “rapid development of developing countries” is to be promoted through
“international co-operation”: ibid., art. 4(2).
realisation of human rights – in other words, it covers both achieving the

objectives of development and the way they are achieved.164 It has been stated
that the right to development “embodies the human rights principles of equality,
non-discrimination, participation, transparency and accountability as well as
international cooperation”.165
Taking account of the situation of developing countries (“inability to pay”)
means accepting that low levels of IP rights protection will be required for a long
time.166 Other factors are, moreover, far more critical to innovation.167 It can also
not be ignored that reverse engineering and the freedom to copy have historically
always played an important role in countries attaining more advanced levels of
industrialisation.168 Technology transfer, one would argue, constitutes an indis-
pensable component of development for countries of the South. One may note that
the U.N. Sustainable Development Goals (SDGs), “informed by … the Declaration
on the Right to Development”,169 stipulate as part of Goal 17, on partnerships for
sustainable development, the goals of “international cooperation on and access to
science, technology and innovation” and “knowledge sharing on mutually agreed
terms”170 and further of “the development, transfer, dissemination and diffusion
of environmentally sound technologies to developing countries on favourable
terms … as mutually agreed”.171 A U.N. expert document on the specific goal of
164 Sengupta (2002), supra note 155, at 848–852.

165 U.N. High Commissioner for Human Rights, U.N. Declaration on the Right to Development at
25, Infonote (17 March 2011).
166 See H.-J. Chang, Kicking Away the Ladder: Development Strategy in Historical Perspective
(London: Anthem Press, 2002), pp. 83–85 (explaining how developed countries attained their
current state of industrialisation by way of what would today be regarded as deficient IP systems).
167 See, e.g. Gervais (2009), supra note 115, at 2355, 2372–2376 (outlining the elements of a
comprehensive innovation strategy); Yong-Shik Lee, Reclaiming Development in the World Trading
System (Cambridge: Cambridge University Press, 2006), p. 160 (pointing out that essential in-
gredients for development include a good education system, coherent economic policies, access to
capital, a non-corrupt government, political stability and so on); R.M. Olwan, Intellectual Property
and Development: Theory and Practice (Berlin and Heidelberg: Springer, 2013), p. 120 (stating that,
in developing countries, “other complementary factors play a much more important role [than IP
rights]”).
168 See Lee (2006), supra note 167, p. 123 (stressing the importance of the ability to copy tech-
nologies for developing countries); for the field of copyright, see Altbach (1996), supra note 98, at
23 (explaining how the United States built up its copyright industry through “egregious” violations
of copyright in the nineteenth century).
169 U.N. General Assembly, Transforming Our World: 2030 Agenda for Sustainable Development,
General Assembly Resolution 70/1, adopted 25 September 2015, U.N. Doc. A/RES/70/1 (21 October
2015), para. 10.
170 Ibid., Goal 17, Technology, 17.6.
171 Ibid., Goal 17, Technology, 17.7.
technology transfer and the right to development finds that “tight intellectual
property rights systems reduce opportunities for technology transfer for devel-
oping countries to ‘catch up’ with the technological environment of the developed
countries”.172 “Tight intellectual property rights systems”, it should be emphas-
ised, are also those that accord a limited significance to rules intended to control
anticompetitive practices in IP rights exploitation.
In what could be read as an assertion of the link between Articles 7 and 8 of
TRIPS and the right to development, the WTO recognised in the Doha Ministerial
Declaration of 2001 that “the TRIPS Council shall be guided by the objectives and
principles set out in Articles 7 and 8 of the TRIPS Agreement and shall take fully
into account the development dimension”.173 Similarly, the World Intellectual
Property Organization’s (WIPO) Development Agenda of 2007, which has been
described as “one of the most – and arguably the most – important of the current
global initiatives in advancing the realization of the right to development”,174
specifically referring to Article 7, emphasises that IP rights enforcement must take
into account “broader societal interests and especially development-oriented
concerns” with a view to, inter alia, contributing to the transfer and dissemination
of technology.175 The Agenda also underlines the links between intellectual
property and competition176 and sets as a goal:
To consider how to better promote pro-competitive intellectual property licensing practices,

particularly with a view to fostering creativity, innovation and the transfer and dissemination
of technology to interested countries, in particular developing countries and LDCs.177
Articles 7 and 8 may thus facilitate reading TRIPS competition provisions through
the lens of the right to development. The Preamble of TRIPS supports this approach
as well. It recognises that national systems for the protection of IP rights may
validly be designed to pursue “developmental and technological objectives”.178
172 Working Group on the Right to Development, High Level Task Force on the Implementation of
the Right to Development, U.N. Human Rights Council, Millennium Development Goal 8, Target F,
on Technology Transfer: Technical Mission in Order to Review the WIPO Development Agenda
from the Perspective of Its Contribution to the Realization of the Right to Development, U.N. Doc.
A/HRC/15/WG.2/TF/CRP.1 (19 November 2009), para. 13(vi).
173 WTO, Ministerial Conference, [Doha] Ministerial Declaration, adopted on 14 November 2001,
WT/MIN(01)/DEC/1 (20 November 2001), para. 19.
174 U.N. Doc. A/HRC/15/WG.2/TF/CRP.1, supra note 172, para. 12.
175 WIPO, 45 Adopted Recommendations under the WIPO Development Agenda (2007), Recom-
mendation 45 [hereinafter WIPO Development Agenda Recommendations].
176 Ibid., Recommendation 22(b).
177 Ibid., Recommendation 23.
178 TRIPS, supra note 2, preamble, recital 5.
It also recognises the needs of least-developed member states in respect of

“maximum flexibility” in the design of national IP (and thus also competition)
systems.179 Ahmed Abdel-Latif pertinently observes that the great value of the right
to development in the international IP rights system is that it normatively supports
an approach “enabl[ing] countries, in particular developing ones, to take advan-
tage of the ‘policy space’ that is provided in international IP standards to address
public policy and development objectives”.180 All this implies that, under TRIPS,
WTO members may legitimately decide that competition law should further social
goals. It can be based on notions of fairness. It can focus on consumer protection. It
may be designed to ensure IP rights further human development. It can be directed
at serving a development agenda, such as that of the SDGs,181 which also mentions
the goal of transfer and dissemination of technology. Ex abundanti cautela: “Policy
space” under the right to development naturally extends to regulating practices
other than anticompetitive practices that negatively affect the transfer and
dissemination of technology through means other than competition law.
4.5 From the Right to Benefit from Science to “Transfer and

Dissemination of Technology” as a Human Right:
“Territorial” and “Extraterritorial” State Obligations
The States Parties to the Covenant recognize the right of
everyone to enjoy the benefits of scientific progress and its
applications.182
All States have obligations to respect, protect and fulfil human
rights, including civil, cultural, economic, political and social
rights, both within their territories and extraterritorially.183
There is no single, comprehensive legal framework on the topic of the transfer of

technology in international law. The field is regulated under a number of
179 Ibid., preamble, recital 6.

180 A. Abdel-Latif, “The Right to Development: What Implications for the Multilateral Intellectual
Property Framework?,” in C. Geiger (ed.), Research Handbook on Human Rights and Intellectual
Property (Cheltenham and Northampton, MA: Edward Elgar, 2015), p. 614.
181 See B. Strunz, The Interface of Competition Law, Industrial Policy and Development Concerns:
The Case of South Africa (Berlin: Springer, 2018), pp. 410, 444 (making this point).
182 International Covenant on Economic, Social and Cultural Rights, supra note 145, art. 15(1)(b)
(slightly adapted).
183 Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social
and Cultural Rights (2011) [hereinafter Maastricht Principles]. See note 210 infra for detail on the
Maastricht Principles.
international legal regimes. International environmental law, for instance, pro-

vides for legal obligations of states in this regard. Article 4(1)(c) of the United
Nations Framework Convention on Climate Change of 1992 thus obliges states
parties to promote and co-operate in the transfer of technologies that control,
reduce or prevent anthropogenic emissions of greenhouse gases.184 International
IP law similarly regulates the field. Article 66(2) of TRIPS states:
Developed country Members shall provide incentives to enterprises and institutions in their
territories for the purpose of promoting and encouraging technology transfer to least-
developed country Members in order to enable them to create a sound and viable techno-
logical base.185
The provision does not really envisage WTO members themselves as the direct
providers in any transfer of technology, but requires them to incentivise transfers
by “enterprises and institutions”.186 “Enterprises and institutions” include private
firms, not-for-profit organisations and public entities.187 The WTO Ministerial
Conference of 2001 “[r]eaffirm[ed] that the provisions of Article 66.2 of the TRIPS
Agreement are mandatory”.188 Also the WIPO’s Recommendations under the WIPO
Development Agenda address the topic of technology transfer.189 A whole cluster
is devoted to “Technology Transfer, Information and Communication Technolo-
gies (ICT) and Access to Knowledge”.190 WIPO intends to “explore intellectual
property-related policies and initiatives necessary to promote the transfer and
dissemination of technology, to the benefit of developing countries”.191 Of course,
the WIPO Recommendations do not as such create legally binding obligations.
184 United Nations Framework Convention on Climate Change, 9 May 1992, 1771 U.N.T.S. 107
(entered into force 21 March 1994), art. 4(1)(c).
185 TRIPS, supra note 2, art. 66(2).
186 See S. Moon, Meaningful Technology Transfer to the LDCs: A Proposal for a Monitoring
Mechanism for TRIPS Article 66.2 (Geneva: ICTSD Programme on Innovation, Technology and
Intellectual Property, Policy Brief No. 9, April 2011), p. 2 (pointing this out).
187 Ibid.
188 WTO, Ministerial Conference, Implementation-Related Issues and Concerns, adopted on 14
November 2001, WT/MIN(01)/17 (20 November 2001), para. 11.2.
189 In fact, already the relationship agreement between the U.N. and WIPO recognised WIPO as
being responsible for facilitating the transfer of IP-related technology to developing countries and
obliged it to co-operate with the U.N. in promoting and facilitating such transfer: U.N. General
Assembly, Agreement between the United Nations and the World Intellectual Property Organi-
zation, General Assembly Resolution 3346(XXIX), adopted 17 December 1974, U.N. Doc. A/RES/
3346(XXIX), arts. 1, 10, respectively.
190 WIPO Development Agenda Recommendations, supra note 175, Cluster C.
191 Ibid., Recommendation 25.
However, also IHRL sets binding norms in the sphere of the transfer of
technology. Yet again, Articles 7 and 8 of TRIPS create a connection to these. The
realisation of all human rights, civil and political, but perhaps specifically
economic, social and cultural rights, depends on access to technologies. Let us
focus, as a point of departure, on national implementation and “territorial” state
obligations first. In giving effect to rights under the ICESCR, states parties will,
therefore, have to secure enjoyment of the various welfare entitlements covered
by economic, social and cultural rights through the transfer and dissemination of
technology benefiting the local population. Innovation needs to move from local
research centres to, and within, local industry (domestic transfer). They will also
have to create an environment conducive to “receiving” foreign or international
technologies (international transfer). The next step is to secure the general
diffusion of local and foreign technologies to ultimately enhance access for or-
dinary persons. In this sense, “the transfer and dissemination of technology” is
implicit in each and every Covenant right. One of the Covenant provisions,
however, addresses technology transfer and dissemination more explicitly and
holistically. This is Article 15(1)(b). It stipulates that states parties recognise the
right of everyone “[t]o enjoy the benefits of scientific progress and its applica-
tions” (REBSPA).192 This should be read together with Article 15(2), which obliges
states parties to achieve the realisation of the rights in Article 15(1) through, inter
alia, “the conservation, the development and the diffusion of science”.193 The
Venice Statement on the Right to Enjoy the Benefits of Scientific Progress and its
Applications (REBSPA) of 2009, an expert document, explains in the same vein
that the realisation of the right in Article 15(1)(b) requires the creation of “an
enabling and participatory environment” for “the conservation, development
and diffusion of science and technology”.194 The recent General Comment No. 25
on Science and Economic, Social and Cultural Rights, adopted by the U.N.
Committee on Economic, Social and Cultural Rights (CESCR) – the independent
expert body supervising implementation of the ICESCR – in April 2020, repeats
this verbatim.195 The General Comment explicitly states that the “benefits” of
192 ICESCR, supra note 145, art. 15(1)(b). For an overview of the normative implications of this
right, see A.R. Chapman, Towards an Understanding of the Right to Enjoy the Benefits of Scientific
Progress and Its Applications, 8 Journal of Human Rights, no. 1 (2009), 1–36.
193 ICESCR, supra note 145, art. 15(2).
194 Venice Statement on the Right to Enjoy the Benefits of Scientific Progress and its Applications, in
UNESCO, The Right to Enjoy the Benefits of Scientific Progress and its Applications: Venice, Italy,
16–17 July 2009 (Paris: UNESCO, 2009), 13-20, para. 13(a) [hereinafter Venice Statement].
195 U.N. Committee on Economic, Social and Cultural Rights, General Comment No. 25: Science
and Economic, Social and Cultural Rights (Art. 15(1)(b), (2), (3), and (4) of the ICESCR), U.N. Doc.
E/C.12/GC/25 (30 April 2020), para. 46 [hereinafter General Comment No. 25].
science include the “material results” of the application of scientific research in

the form of technology.196
However, focusing on the international transfer of technology and the transfer
needs of developing countries: Does IHRL impose “extraterritorial” state obligations
(ETOs) in this sphere197 – and, if so, what are their implications for IP-related
competition law under TRIPS? As Stephen Humphreys summarises the issues,
technological solutions are necessary to secure basic subsistence rights. However,
investment in these solutions will often be beyond the resources of developing
countries. Securing human rights in these countries will, therefore, require a
transfer of technology from countries of the North to those of the South.198 It may
be noted that already the draft UNCTAD Code of Conduct on the Transfer of
Technology (never adopted) sought justification for such a claim in the fact that
“all peoples have the right to benefit from the advances and developments in
science and technology in order to improve their standards of living”.199
The concept of ETOs needs a brief introduction. Article 28 of the Universal
Declaration of Human Rights of 1948 provides for a right of “everyone” to “a social
and international order in which the rights and freedoms set forth in th[e] Decla-
ration can be fully realized”.200 Article 3(3) of the Declaration on the Right to
Development in a way connects to this by identifying the duty bearers in this
regard: “States have the duty to co-operate with each other in ensuring develop-
ment and eliminating obstacles to development”, linking this to their broader
obligation “to promote a new international economic order” and “to encourage the
observance and realization of human rights” globally.201 Both these declarations
are not legally binding on states, of course. However, the notion of states indi-
vidually and collectively bearing responsibility for the realisation of economic,
social and cultural rights globally is also found in the ICESCR, a treaty to which
most WTO members are states parties. It protects the REBSPA, but also aspects of
196 Ibid., para. 8.

197 For a discussion of this question in a specific context, that of the right to health, see J. Sellin
and F. Coomans, Extraterritorial Human Rights Obligations and the Transfer of Technology for
Local Production and Research & Development for Essential Medicines, Maastricht Faculty of Law
Working Paper 2016/7.
198 S. Humphreys, Perspective: Technology Transfer and Human Rights: Joining Up the Dots, 9
Sustainable Development Law & Policy, no. 3 (2009), 2–3.
199 Draft International Code of Conduct on the Transfer of Technology, in Compendium of
International Arrangements on Transfer of Technology: Selected Instruments (New York, NY and
Geneva: United Nations, 2001), 261–277, recital 2 (emphasis added). The word “peoples” covers the
notion that the claim is directed at the international community of states.
200 U.N. General Assembly, Universal Declaration of Human Rights, General Assembly Resolu-
tion 217 (III) A, adopted 10 December 1948, U.N. Doc. A/RES/217 (III) A, art. 28.
201 Declaration on the Right to Development, supra note 154, art. 3(3).
the right to development must be considered included (and thus binding) under
the Covenant.202 The Covenant’s key provision, Article 2(1), which defines the
manner in which Covenant rights are to be implemented, stipulates that each state
party “undertakes to take steps”, “individually and through international assis-
tance and co-operation”, “to the maximum of its available resources” “with a view
to achieving progressively the full realisation” of Covenant rights.203 In other
words, the realisation of economic, social and cultural rights may also become a
claim enforceable by individuals or their governments against other states
parties.204 In appropriate circumstances therefore, states parties bear extraterri-
torial human rights obligations towards those living beyond their own territory.
However, is the Covenant’s duty to co-operate a “hard law” obligation? It is
certainly laid down in a material provision of an international agreement. Moreover,
the CESCR, in 1990, in its influential General Comment No. 3 on the nature of states
parties’ obligations under the Covenant, held that international co-operation for
development is “an obligation … particularly incumbent upon those States which
are in a position to assist others”.205 In making this statement, the Committee relied,
inter alia, on Articles 55 and 56 of the U.N. Charter. Article 55 mentions the promotion
of “universal respect for, and observance of, human rights” as a U.N. goal in the
sphere of socio-economic development.206 Article 56 then goes on to lay down the
202 See note 160 and accompanying text supra.

204 At the international level, rights under the ICESCR can be enforced before the CESCR. The
Committee is competent to receive communications submitted by or on behalf of individuals or
groups of individuals, claiming that their rights under the Covenant have been violated: Optional
Protocol to the International Covenant on Economic, Social and Cultural Rights, 10 December 2008,
2922 U.N.T.S. 27 (entered into force 5 May 2013), art. 2. It can also deal with inter-state complaints to
the effect that obligations under the Covenant are not being complied with as between states parties
to the Protocol that both, by way of declaration, have accepted the competence of the Committee to
deal with inter-state complaints: ibid., art. 10. A problem, of course, is that, to date, only 25 states
parties to the Covenant have ratified the Protocol and only five have made a declaration as indi-
cated: Status of ratification as on 12 December 2020, see United Nations Treaty Collection, Status
of Treaties, available at: <https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_
no=IV-3-a&chapter=4&clang=_en<. However, potential recourse to an ad hoc tribunal, or in terms
of the general principles of public international law, always remains possible.
205 U.N. Committee on Economic, Social and Cultural Rights, General Comment No. 3: The Nature
of States Parties’ Obligations (Art. 2(1) of the ICESCR), U.N. Doc. E/1991/23 (14 December 1990),
para. 14 (emphasis added). Philip Alston and Gerard Quinn have similarly stated that, “[i]n the
context of a given [Covenant] right it may, according to the circumstances, be possible to identify
obligations to co-operate internationally that would appear to be mandatory on the basis of the
undertaking contained in Article 2(1) of the Covenant”: P. Alston and G. Quinn, The Nature and
Scope of States Parties’ Obligations under the International Covenant on Economic, Social and
Cultural Rights, 9 Human Rights Quarterly, no. 2 (1987), at 191.
206 U.N. Charter, art. 55(c).
“pledge” of members “to take joint and separate action in co-operation with the
Organization” for the achievement of this and the other goals of Article 55.207
ETOs may apply in very concrete transborder type of situations, where they
protect identifiable individuals or groups of individuals in specific countries. This
refers to situations where a state commits an act affecting persons beyond its
territory in circumstances where the state is the bearer of state authority (e.g. where
it exercises effective control over territory and persons) or where its acts have
foreseeable consequences on persons beyond its territory.208 However, ETOs may
also be more “global” in nature, where they seek to protect indefinite persons in
countries around the globe. The Maastricht Principles on Extraterritorial Obliga-
tions of States in the Area of Economic, Social and Cultural Rights of 2011 hence
state that “the Charter of the United Nations and human rights instruments”
establish ETOs understood as “obligations of a global character … to take action,
separately, and jointly through international cooperation, to realize human rights
universally”.209 The Maastricht Principles, which were drafted by international law
experts, may be seen to reflect the legal position on the topic of ETOs as adjudged
by renowned jurists.210
207 Ibid., art. 56. Specifically with regard to Article 56, it has been noted that “the obligation is far
from precise … But does this mean that it cannot be considered a legal obligation? In view of both
the history and the language of this Article, this would certainly be an extreme conclusion”: O.
Schachter, The Charter and the Constitution: The Human Rights Provisions in American Law, 4
Vanderbilt Law Review, no. 3 (1951), at 650–651.
208 Maastricht Principles, infra note 210, Principle 8(a) read with Principle 9(a), (b).
209 Ibid., Principle 8(b) (to be read with Principle 9(c)).
210 For a reproduction of, and commentary to, the Maastricht Principles, see O. de Schutter, A.
Eide, A. Khalfan, M.A. Orellana, M.E. Salomon, and I.D. Seiderman, Commentary to the Maastricht
Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural
Rights, 34 Human Rights Quarterly, no. 4 (2012), 1084–1169. As to their legal status, the Maastricht
Principles may be regarded as reflective of the teachings of the most highly qualified publicists as a
subsidiary means in determining rules of international law in the sense of Article 38(1)(d) of the
Statute of the International Court of Justice. In lieu of an enumeration of relevant sources on the
topic of ETOs here, the reader is, for a list of articles, books and documents on ETOs, referred to the
website of the ETO Consortium, at https://www.etoconsortium.org/en/main-navigation/library/
documents. The sources there have roughly been updated up to 2019, many addressing economic,
social and cultural rights. The ETO Consortium is a network of human rights-related civil society
organisations and academics advancing the cause of ETOs under IHRL. For a discussion of ETOs in
relation to international IP law, specifically TRIPS, see K.D. Beiter, “Establishing Conformity
between TRIPS and Human Rights: Hierarchy in International Law, Human Rights Obligations of
the WTO and Extraterritorial State Obligations under the International Covenant on Economic,
Social and Cultural Rights,” in H. Ullrich et al. (eds.), TRIPS plus 20: From Trade Rules to Market
Principles (Berlin and Heidelberg: Springer, 2016), pp. 445–505. For a discussion of ETOs in
relation to international copyright law and access to textbooks, see Beiter, supra note 153, 1–79.
Principle 33 of the Maastricht Principles provides that,
[a]s part of the broader obligation of international cooperation, States, acting separately and
jointly, that are in a position to do so, must provide international assistance to contribute to
the fulfilment of economic, social and cultural rights in other States.211
This would implicate the provision of tangible benefits in the form of financial or
material aid in the field of technology transfer by states. Beyond this, international
co-operation includes steps a state takes to promote collaboration between its
science and R&D (research & development) sectors and those of other states. This
may be held encompassed by Article 15(4) of the ICESCR, which calls on states
parties to “recognize the benefits to be derived from the encouragement and
development of international contacts and co-operation in the scientific … field[]”.212
A former U.N. Special Rapporteur in the Field of Cultural Rights, Farida Shaheed,
commenting on the REBSPA, summarises all this by stating that, with regard to the
transfer of technology, “industrialized States [are] to comply with their international
legal obligations through the provision of direct aid, financial and material, as well as
the development of international collaborative models of research and development
for the benefit of developing countries and their populations”.213 General Comment
No. 25 confirms these very duties.214 The Maastricht Principles add that a state’s duty
to co-operate is commensurate with various factors, such as its available resources
and further its “technological capacities”.215 The latter refers to “control over tech-
nologies” and “intellectual property ownership”.216 This then highlights the re-
sponsibility of countries of the global North, where IP rights in respect of technology
are essentially located, with regard to the transfer of technology.
In another sense, international co-operation is to have an international
constitutional effect. In terms of Principle 29 of the Maastricht Principles,
211 Maastricht Principles, supra note 210, Principle 33.

213 F. Shaheed, Report of the Special Rapporteur in the Field of Cultural Rights: The Right to Enjoy
the Benefits of Scientific Progress and its Applications, U.N. Doc. A/HRC/20/26 (14 May 2012), para.
68.
214 General Comment No. 25, supra note 195, para. 79. See also Venice Statement, supra note 194,
para. 24 (states “should … promote international cooperation and assistance to countries that
encounter difficulties in developing … technology policy”).
215 Maastricht Principles, supra note 210, Principle 31.
216 De Schutter et al., supra note 210, at 1153.
States must take deliberate, concrete and targeted steps, separately, and jointly through
international cooperation, to create an international enabling environment conducive to the
universal fulfilment of economic, social and cultural rights, including in matters relating to
bilateral and multilateral trade, investment, … and development cooperation.217
How is such an international enabling environment to be achieved? States must

elaborate, interpret and apply international agreements and standards in con-
formity with their human rights obligations.218 They must adopt specific interna-
tional safeguard policies, standards and mechanisms protecting economic, social
and cultural rights.219 They are to subject laws, policies and practices to regular
human rights impact assessments, also with regard to their extraterritorial
effects.220 Each state should adopt domestic and foreign affairs policies and
measures supporting the fulfilment of economic, social and cultural rights uni-
versally.221 It is important further to appreciate that states must comply with their
human rights obligations also in their capacity as members of international
organisations, whenever their conduct could have an impact on the enjoyment of
economic, social and cultural rights by persons in other countries.222 Hence, states
have “an obligation to ensure that their actions as members of international
organizations take due account of” human rights.223 Overall, all these obligations
require separate and joint state action at the national and the international level in
respect of national and international law and policy.
In its General Comment No. 25, the CESCR, specifically using the term
“extraterritorial obligation”, points out that states parties, when negotiating
international agreements in the IP field, must ensure that IP regimes foster the
enjoyment of the REBSPA.224 States parties must also exercise their voting powers
in international organisations in a way as to respect, protect and fulfil the
REBSPA.225 As the REBSPA includes access to technologies and covers the freedom
of states parties to receive international transfers of technology, the implications
are the following: Other states parties must not do anything that frustrates the
217 Maastricht Principles, supra note 210, Principle 29 (emphasis added).

218 Ibid., Principles 17, 29(a).
219 Ibid., Principle 29(a).
220 Ibid., Principles 14, 29(a).
221 Ibid., Principle 29(b).
222 Ibid., Principle 15.
223 The CESCR has emphasised this regularly with regard to different economic, social and
cultural rights. See, e.g. U.N. Committee on Economic, Social and Cultural Rights, General
Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12 of the ICESCR),
U.N. Doc. E/C.12/2000/4 (11 August 2000), para. 39 (emphasis added).
224 General Comment No. 25, supra note 195, para. 83 (“extraterritorial obligation”).
225 Ibid. (“extraterritorial obligation”).
transfer of technology (duty to respect). Furthermore, states parties, in concluding

international IP agreements, or as members of, for example, WIPO or the WTO,
must direct efforts at establishing an international framework that supports the
transfer of technology (duty to facilitate or ensure). Also in prior statements
addressing IP rights, the CESCR has underlined the obligation of states parties to
ensure international IP regimes allow members, in the light of their different levels
of development, to opt for national IP systems that focus more on facilitating
access than on the protection of technology.226 International IP regimes should
“facilitate and promote” technology transfer.227 All this then supports a clear
recognition of the role of competition law as undoubtedly a highly suitable instru-
ment that may help secure such a transfer.
The aforementioned demonstrates that the international transfer of technol-
ogy under IHRL, in many ways, is a broader concept than under a strict reading of
TRIPS.228 For example, TRIPS does not really include states themselves as pro-
viders of aid. However, even in human rights law, the concepts of “technology”, or
its “transfer”, need as yet to be concretised. Further, what is the role of beneficiary
states themselves – merely that of passive recipients or that of active agents that
articulate clear needs as to the nature of transfers required? What are the char-
acteristics of participation in the process, for transfers to be “fair and equitable”?229
4.6 Implications for Competition Law: Deducing Human Rights

Obligations
Appreciating the fact that “the transfer and dissemination of technology” is

covered by the right to development and economic, social and cultural rights,
notably the REBSPA, and the fact further that human rights entail “territorial” and
226 U.N. Committee on Economic, Social and Cultural Rights, Statement on Human Rights and
Intellectual Property, Follow-up to the Day of General Discussion on Article 15(1)(c), 26 November
2001, U.N. Doc. E/C.12/2001/15 (14 December 2001), para. 15.
227 Ibid.; U.N. Committee on Economic, Social and Cultural Rights, General Comment No. 17: The
Right of Everyone to Benefit from the Protection of the Moral and Material Interests Resulting from
Any Scientific, Literary or Artistic Production of Which He or She Is the Author (Art. 15(1)(c) of the
ICESCR), U.N. Doc. E/C.12/GC/17 (12 January 2006), para. 38.
228 Generally for a discussion of technology transfer under different international legal regimes,
see M.A. Orellana, D. Shabalala, B. Tuncak, et al., Technology Transfer in the UNFCCC and Other
International Legal Regimes: The Challenge of Systemic Integration (International Council on
Human Rights Policy, 2010).
229 Stressing the importance of a participatory approach, see E. Morgera, Fair and Equitable
Benefit-Sharing at the Cross-Roads of the Human Right to Science and International Biodiversity Law,
4 Laws, no. 4 (2015), 803–831.
“extraterritorial” state obligations, what then are the conclusions to be drawn for
the role of competition law in relation to the transfer and dissemination of tech-
nology? Which state obligations flow from IHRL in this regard? The following
obligations may be identified.
States enjoy substantial “policy space” in designing their national IP and
competition laws in a way as to address development and access goals. Compe-
tition law may pursue social goals. It may strictly regulate anticompetitive prac-
tices taking the form of refusals to license, the discriminatory grant of licences,
discriminatory or otherwise restrictive licence terms or other abuses of dominance,
for instance, excessive pricing of IP-protected products, even if the conduct orig-
inates abroad. Competition law and measures should, as far as possible, not un-
dermine the essence of IP rights under TRIPS.230 Developed states are obliged to
refrain from pressurising developing states into not adopting or enforcing
competition law that is boldly designed to facilitate the transfer of technology.231
However, they may, as indicated, claim that competition law and measures
should, as far as possible, not undermine the essence of IP rights under TRIPS.
“Policy space” and “respect therefor” remain core values naturally also in as far as
measures beyond competition law are concerned, relevant where practices within
the ambit of Article 8(2) of TRIPS adversely affect the international transfer of
technology, but are not anticompetitive in nature.
There is an obligation for states under IHRL to ensure the local diffusion of
technology. This includes an obligation to create an environment conducive for
foreign or international technologies to flow to local markets. It is submitted that
developing states are generally obliged to rely on competition law (proper
competition legislation and strong, independent competition authorities)232 as a
means of securing the diffusion of technology locally. While the specific context
(level of development, intensity of transfer needs, other suitable measures adopted
and so on) will determine the scope of the obligation, it is difficult to see how such a
diffusion can be ensured adequately without a reliance on competition law.233
230 It should be remembered that human rights can be restricted within defined limits. The
ICESCR, for example, contains a general limitation clause in Article 4: ICESCR, supra note 145, art.
4. The consistency and proportionality requirements of Articles 8(2) and 40 of TRIPS (in terms of
which the essence of IP rights under TRIPS is not to be undermined) will benefit from this fact, but
the demands of human rights may in various cases be more extensive than what the consistency or
proportionality requirement permits. For that reason, the phrase “as far as possible” is used here.
231 Nguyen (2010), supra note 10, pp. 288–289.
232 Ibid., p. 290 (identifying inter alia these two essential components of any developing state’s
national competition strategy).
233 Ibid., pp. 292–293 (“If a developing country does not have IPR-related competition law … it
deprives itself of an important tool in establishing a balance … with … IPRs”).
Developing states should not merely replicate the competition regimes of devel-
oped states – the net exporters of IP-based technologies – but adopt laws that fit the
local situation.234 Competition law and measures should, as far as possible, not
undermine the essence of IP rights under TRIPS. Again, measures beyond
competition law will also have to be taken whenever practices adversely affect the
international transfer of technology, but are not anticompetitive in nature.
For developed states, there is an obligation under IHRL to exercise restraint in
broadly relinquishing reliance on competition law as a tool for purposes of
contributing towards dissemination. In terms of a human rights perspective,
states, in accordance with their levels of development and the robustness of local
markets, retain more or less freedom to decide what emphasis exactly competition
laws should put on the innovation and dissemination rationale, respectively. Yet,
some form of balance will have to be maintained. An application of competition
law reflecting that balance cannot be dispensed with altogether. This flows, on the
one hand, from the REBSPA. Olivier de Schutter accordingly suggests that the
REBSPA must mean (for all states) “a more systematic use of antitrust legislation”
in order to “combat abuses of economic power” where IP rights contribute to
“excessive concentration” within certain sectors and allow right holders to “cap-
ture a disproportionate revenue”.235 On the other hand, this flows from the duty of
solidarity (as an ETO) among states and specifically towards developing states.236
Ultimately, if powerful states solely pursue innovation goals, this exercises enor-
mous pressure on other states to follow suit, as they would otherwise “lose out”,
with firms in the former states seeking their licensees only in states with lax
competition law standards. As it were, in the light of the latter consideration, there
would seem to be an ETO requiring all states to seek an international harmo-
nisation of (IP-related) competition law standards by way of an international legal
instrument.
Consequently, reverting to the question that has been posed earlier: Is there a
duty to regulate? It has been stated earlier that, within TRIPS, such a duty could be
argued to follow from the “good faith” principle captured by the “pacta sunt
234 Ibid., p. 288.

235 O. de Schutter, The Right of Everyone to Enjoy the Benefits of Scientific Progress and the Right to
Food: From Conflict to Complementarity, 33 Human Rights Quarterly, no. 2 (2011), at 349.
236 A former U.N. Independent Expert on Human Rights and International Solidarity, Virginia
Dandan, has thus stated that “the right to international solidarity” requires “a just regulation of
globalization” and “more equitable arrangements for … technology transfer [and] intellectual
property”: V. Dandan, Report of the Independent Expert on Human Rights and International Soli-
darity [Draft Declaration on the Right to International Solidarity], U.N. Doc. A/HRC/35/35 (25 April
2017), para. 67. Such restraint is exactly the type of regulation she might have had in mind.
servanda” maxim.237 The previous two paragraphs, however, go to show that it

also exists, for developing and developed states, in terms of IHRL, to the respective
extent outlined.
Under IHRL, states that are able to assist others in this regard have an
obligation to provide financial or material aid in the field of the international
transfer of technology. They must further incentivise provision by private firms,
non-governmental organisations and public entities. These actors include
companies in the R&D sector, research institutes, universities and so on.
Collaboration between their science and R&D sectors and those of developing
countries is to be promoted. These duties are ETOs. Technology transfers under
Article 66(2) of TRIPS can be seen as (partially) contributing towards fulfilment
of obligations in this category.
There is an ETO under IHRL, requiring states to regulate and monitor the
conduct of non-state actors (commercial enterprises) “doing business abroad”
over which they are able to exercise control, that is, where there exists a sufficient
link with those enterprises.238 Both the Maastricht Principles and General
Comment No. 25, the latter specifically for the REBSPA, confirm the existence of
such an ETO to protect individuals in foreign countries against harm caused by
“one’s own” non-state actors (duty to protect).239 Although competition law
usually follows the “effects doctrine”, in terms of which countries will only
regulate conduct, wherever it occurs, if it produces effects in the home state,240 this
principle needs to be qualified. Hence, a state is obliged to ensure “its” enterprises
do not rely on anticompetitive practices that obstruct the transfer of technology to,
and prejudice producers or consumers in, other states (whether the enterprise has
237 See notes 90–92 and accompanying text supra.

238 Regulatory jurisdiction may thus exist with regard to companies domiciled in the home
country that are in a position to exercise control over subsidiaries, branches, agents or contracting
partners in host countries. Regulatory jurisdiction may also exist with regard to overseas actors
directly, for instance, because the latter are subsidiaries of companies domiciled in the home
country or because the directors or shareholders of overseas companies are nationals of, or
domiciled in, the home country. On potential jurisdictional bases in this respect, see Maastricht
Principles, supra note 210, Principle 25.
239 Maastricht Principles, supra note 210, Principles 24, 25; General Comment No. 25, supra note
195, para. 84. This ETO to protect has also been articulated in the business and human rights
context: see J. Ruggie, Guiding Principles on Business and Human Rights: Implementing the
United Nations “Protect, Respect and Remedy” Framework, U.N. Doc. A/HRC/17/31 (21 March
2011), e.g. Guiding Principles 1, 2; U.N. Committee on Economic, Social and Cultural Rights,
General Comment No. 24: State Obligations under the International Covenant on Economic, Social
and Cultural Rights in the Context of Business Activities, U.N. Doc. E/C.12/GC/24 (10 August 2017),
paras. 30–35.
240 See Conde Gallego (2010), supra note 33, pp. 261–262 (explaining the “effects doctrine”).
a commercial presence or an agent abroad or not). At a minimum, the requirement

is to ensure enterprises “doing business abroad” comply with the same standards
that are prescribed at home. Such a non-discrimination principle has also been
postulated in the literature.241 There is not only a strong moral rationale underlying
this ETO, but this approach also facilitates enforcement of the law in (developed)
states with an often well-functioning competition law system.
Finally, there are ETOs of a constitutional nature, envisioning the creation of
an international enabling environment conducive to the universal fulfilment of
human rights. States, acting uni-, bi-, pluri- or multilaterally, for example, in WIPO
or the WTO, are obliged to create, interpret and apply national and international
law and policy in a way that promotes human rights universally. Notably in this
context, they should, with regard to all adjudicative, including WTO dispute set-
tlement procedures, promote a consistent practice of interpretation of TRIPS
competition rules in accordance with IHRL. This calls for an interpretation of
Articles 8(2), 31 and 40 that allows maximum “policy space” to developing states in
the formulation and enforcement of competition law aimed at fostering technology
transfer. Yet, as far as possible, competition law and measures should not
undermine the essence of IP rights under TRIPS.
Joseph Stiglitz and Andrew Charlton have proposed a revision of TRIPS to the
effect that
compulsory licensing should be extended beyond national emergencies to broader “refusal to

deal” scenarios in which developing countries are unable to access products patented by
corporations which choose not to serve their market, for example, because it is too small. The
revenues lost to the patent-holders as a result of such compulsory licensing are likely to be
small. … By contrast, the cost to the developing countries of failure to provide technologies at
affordable prices … is enormous.242
TRIPS may need revision, but perhaps its provisions are flexible enough to
accommodate an approach which allows far-reaching rules and measures by
developing countries in terms of which these can address what they consider
anticompetitive (and other harmful) practices jeopardising technology transfer.
For purposes of clarification, however, a WTO ministerial declaration akin to the
Doha Declaration on the TRIPS Agreement and Public Health of 2001 should
elucidate the (wide) powers of TRIPS countries in this respect.
A human rights-conducive environment will structurally require safeguard
mechanisms to be set up. Very much in line with this consideration, the TRIPS
241 See J. Drexl, International Competition Policy after Cancún: Placing a Singapore Issue on the
WTO Development Agenda, 27 World Competition, no. 3 (2004), 450 et seq.
242 Stiglitz and Charlton (2005), supra note 9, p. 144.
Council, in 2003, created a reporting mechanism, whose aim is to help assess

compliance by WTO members with their technology transfer obligations under
Article 66(2).243 An examination of the mechanism in the literature notes, however,
that it does not work well in practice. It has not resulted in significant additional
incentives “beyond business-as-usual” for transferring technology to least-
developed members.244 The mechanism needs revision and strengthening. It
should not only be developed states that report; developing states should submit
reports detailing their transfer needs.245 The Council should specifically assess
whether both sides adequately rely on competition law as an instrument to facil-
itate the transfer of technology from North to South.
Concerning ETOs of a constitutional nature (consistent interpretative practice,
WTO declaration, reporting mechanism, etc.), the creation of an enabling envi-
ronment should clearly also extend to the taking of measures beyond competition
law where practices adversely affect the international transfer of technology, but
are not anticompetitive in nature.
A final crucial point should be made: Although the analysis here did not
particularly focus on FTAs concluded beyond TRIPS, it is important to appreciate
that all the state obligations flowing from IHRL mentioned, including ETOs, indeed
serve to safeguard IP-related competition law against reductionism in the FTA
context as well.
5 Consolidated Considerations for a

“Prodevelopment” Competition Law
Hanns Ullrich has lamented the expansion of IP protection and a concomitant
reduction of competition rules, arguing that this is contrary to the political
consensus underlying TRIPS and that it jeopardises overcoming the technology
dependence of developing countries. This article has argued for an inversion of this
formula, a reduction of IP protection and an expansion of competition law. It
proposed a “prodevelopment” approach to IP-related competition law. In con-
structing this, it relied on arguments that emphasise public interest and human
rights considerations (rather than on a “public goods” perspective). It was
postulated that such an approach, overall, served to comply with the rule of law of
international law understood in a normative sense.
243 WTO, Decision of the Council for TRIPS of 19 February 2003, Implementation of Article 66.2 of
the TRIPS Agreement, IP/C/28 (20 February 2003).
244 Moon, supra note 186, p. 12.
245 Ibid., p. 13.
Among development-oriented legal scholars and experts, there is over-

whelming support for an enhanced role of competition law as an instrument to
facilitate the transfer and dissemination of technology to benefit countries of the
South.246 Because TRIPS imposes strong IP rights protection, countries need
appropriate balancing tools. A strong competition law should be one of these. Tu
Thanh Nguyen expresses this as follows:
If a developing country does not have IPR-related competition law, or does not strongly and
appropriately enforce it, it deprives itself of an important tool in establishing a balance, since
it has strongly to protect IPRs. Using a reasonable and enforceable IPR-related competition
law, developing countries can make the self-interests of IPR holders serve wider interests in
order to benefit their populations and help them achieve sustainable development in a
knowledge-based economy.247
This presupposes that TRIPS competition rules – Articles 8(2), 31 and 40 – be read
in a “prodevelopment” fashion that permits such a wide use of competition law. It
requires a clear identification of the obligations of states in this context under
TRIPS, but also as participants in other regimes of international law, and a “wise”
manner of establishing a balance between various norms. Perhaps the best way to
conclude this article is by presenting a consolidation of the analysis in the form of
246 See, e.g. Global Congress on Intellectual Property and the Public Interest, The Washington
Declaration on Intellectual Property and the Public Interest, 28 American University International
Law Review, no. 1 (2012), at 21 (“Putting Intellectual Property in Its Place”) (there should be
“[u]se [of] all available regulatory frameworks for controlling abuses of intellectual property
rights, including mechanisms that protect consumers, control excessive pricing, prevent anti-
competitive conduct, regulate licensing and contractual terms and open access to essential
facilities”); J.H. Reichman, Richard Lillich Memorial Lecture: Nurturing a Transnational System of
Innovation, 16 Journal of Transnational Law and Policy, no. 2 (2007), at 161 (“developing
countries need to formulate suitable competition law rules and policies … to ensure that foreign
technologies and know-how flow to local markets at prices local entrepreneurs can afford”);
Maskus and Reichman (2005), supra note 73, p. 38 (developing countries need “breathing room
in which to formulate competition laws and policies rooted in fairness, in concerns to lower
barriers to entry, and in the need to ensure that market-induced transfers of technology were not
thwarted by refusals to deal and unreasonable licensing terms or conditions”); Mercurio (2011),
supra note 21, p. 71 (“developing countries can take a lead in shaping the direction of IPRs into
the future by designing laws that facilitate the transfer of advanced foreign technologies and
know-how on reasonable terms, conditions, and prices to remain open and affordable to local
industry”); C. Deere, The Implementation Game: The TRIPS Agreement and the Global Politics of
Intellectual Property Reform in Developing Countries (Oxford and New York, NY: Oxford Uni-
versity Press, 2009), p. 94 (countries should in national IP laws or through separate laws
specifically regulate the question of restrictive licensing practices and conditions); Gervais
(2012), supra note 86, p. 240 (“[a]dequate competition law measures should form part of a well-
functioning intellectual property system”).
247 Nguyen (2010), supra note 10, pp. 292–293.
10 considerations for a “prodevelopment” IP-related competition law, applicable

to TRIPS countries, also in as far as FTAs negotiated beyond TRIPS are concerned.
Consolidated Considerations:
1. Articles 7 and 8 of TRIPS emphasise that IP rights protection must achieve a
balance between contributing to the promotion of innovation and the
transfer and dissemination of technology. This balance must be established
in the context of an overall “balance of rights and obligations” in interna-
tional law. Especially the dissemination rationale justifies a clear role for
competition law. “Technology” should be read to include all types of
knowledge.
2. “The transfer and dissemination of technology” is a human right under IHRL.
It is a component of most economic, social and cultural rights, notably the
REBSPA. Also the right to development encompasses such a claim. Compe-
tition law constitutes a suitable instrument to facilitate realisation of this right.
Articles 7 and 8 of TRIPS provide a link to IHRL in this context.
3. Economic efficiency, innovation, transfer and dissemination, socio-economic
welfare, consumer protection, human development and fairness all constitute
legitimate goals of competition law.
4. Both TRIPS and IHRL, including the right to development, support substantial
“policy space” for WTO members in the design of national IP and competition
law, so as to take account of national development and access needs. Reading
TRIPS in the light of IHRL, competition law and measures should, as far as
possible, not undermine the essence of IP rights under TRIPS.
5. Developed WTO members must fully respect this “policy space” of developing
members and may not exercise pressure on the latter compelling them not to
utilise competition law in their pursuit of development and access goals. They
may, however, claim that competition law and measures should, as far as
possible, not undermine the essence of IP rights under TRIPS.
6. Developing WTO members are obliged under IHRL to rely on competition law
as a means of securing the flows of technologies to, and within, local markets
and, generally, of securing the diffusion of technology locally for the ultimate
benefit of consumers. The specific context (development, other suitable
measures adopted, etc.) will determine the scope of the obligation.
7. Developed WTO members are obliged to exercise restraint in broadly relin-
quishing reliance on competition law as a tool for purposes of contributing
towards dissemination. This flows from the REBSPA, and it is a duty of soli-
darity in terms of IHRL, aimed at ensuring that technology transfer remains a
realisable goal globally.
8. Anticompetitive conduct by a non-state actor that produces effects abroad

must be regulated by the home state if a sufficient link exists between it and
the non-state actor concerned. At a minimum, enterprises “doing business
abroad” should be required to comply with the same standards that are pre-
scribed at home. This is a principle of morality, effective law enforcement,
non-discrimination and human rights.
9. Developed WTO members that are able to assist developing members in this
regard are obliged under IHRL, separately and jointly, to provide financial or
material aid in the field of the international transfer of technology. They must
also incentivise the transfer of technology by other actors within the state to
developing members (this duty also exists under Article 66(2) of TRIPS). They
must further promote collaboration between their science and R&D sectors
and those of developing members.
10. WTO members are obliged under IHRL, separately and jointly, to create an
enabling environment within and beyond the WTO conducive to competition
law being applied to facilitate the transfer and dissemination of technology in
the endeavour of realising human rights universally. This may be achieved by
following human rights-supportive interpretative practices (e.g. in WTO
dispute settlement procedures), adopting “safeguard” TRIPS declarations or
strengthening the TRIPS reporting mechanism and so on.
Naturally, under TRIPS and/or IHRL, there are rights and obligations in the
aforementioned sense to apply, or permit application of, measures beyond
competition law where practices adversely affect the transfer of technology, but
are not anticompetitive in nature.
Acknowledgment: Sincerest thanks go to an anonymous reviewer for very

valuable comments.
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Law and Development Review 2021; 14(1): 215–272

Abstract: Increasingly, the economy of industrialised countries moves away from

facilitates dissemination. The International Covenant on Economic, Social and

Keywords: intellectual property rights, competition law, TRIPS, Articles 7 and 8,

1 Competition Law and the Transfer and

1 H. Ullrich, “Expansionist Intellectual Property Protection and Reductionist Competition Rules: A

unreasonably obstructed, notably in the context of ordinary licensing. However, as

In other words, trends of concerted behaviour and concentration of market power

6 Ullrich (2005), supra note 1, p. 727.

unreasonably obstruct the transfer and dissemination of technology.17 Article 40

17 Ibid., art. 8(2).

2 International IP-Related Competition Law? Only

27 See Section 4.2 infra.

1. Members agree that some licensing practices or conditions pertaining to intellectual

Article 31 recognises the validity of compulsory licences in the sphere of patent

31 TRIPS, supra note 2, art. 40(1), (2).

constitutes an “abuse”.35 Practices which “unreasonably restrain trade” include

rationale is therefore to ensure competition laws do not systematically develop in a

Article 40 is a lex specialis provision. It concretises Article 8(2). It allows

47 Ibid., pp. 554, 556.

Intellectual Property protection is important to encourage innovation and creativity in the

3 A Shift of Balance: From Competition to

“freed”. Rather, technology is now licensed as a service in the form of, or in

4 Reasserting the Balance: A “Prodevelopment”

75 Ibid., p. 752 (pointing out this dilemma).

welfare) is concerned, this may be understood in a “dynamic” or “static” sense. The

innovators … preserve[s] competitive openness in downstream innovation mar-

85 Ricolﬁ (2006), supra note 55, at 328.

An “honest” approach therefore requires attention being given to the status of

accessibility of knowledge globally becomes a serious challenge where such

This supports a “prodevelopment” role of IP-related competition law under TRIPS

4.2 Articles 7 and 8 of TRIPS and the Object and Purpose of a

Article 7 of TRIPS, entitled “Objectives”, states:

requires a balance between the interests of “producers” and “users” of technological

120 Similarly, see ibid.

requirement should solely be read as a protection against excesses undermining IP

130 See notes 40–42 and accompanying text supra.

aforementioned normative dimensions buttressing IP-related competition law,

133 Yu (2009), supra note 88, at 1019.

4.3 Articles 7 and 8 of TRIPS and “Systemic Integration”

a harmonious reading is to take into account the “normative force” of contending

4.4 The Right to Development

International law recognises a human right to development.155 The U.N. General

condition less restrictively and consider non-binding documents as material

realisation of human rights – in other words, it covers both achieving the

164 Sengupta (2002), supra note 155, at 848–852.

To consider how to better promote pro-competitive intellectual property licensing practices,

It also recognises the needs of least-developed member states in respect of

4.5 From the Right to Benefit from Science to “Transfer and

There is no single, comprehensive legal framework on the topic of the transfer of

179 Ibid., preamble, recital 6.

international legal regimes. International environmental law, for instance, pro-

science include the “material results” of the application of scientiﬁc research in

196 Ibid., para. 8.

202 See note 160 and accompanying text supra.

Principle 33 of the Maastricht Principles provides that,

211 Maastricht Principles, supra note 210, Principle 33.

How is such an international enabling environment to be achieved? States must