Trips Agreement National Treatment

(d) arising from international agreements for the protection of intellectual property which entered into force before the entry into force of the WTO Agreement, provided that such agreements are notified to the Ad Hoc Council and do not constitute arbitrary or unjustifiable discrimination against nationals of other Members. The in ation applies only after a product, service or intellectual property has been put on the market. Therefore, the imposition of import duties does not constitute a violation of national treatment, even if locally produced products do not levy an equivalent tax. [2] There is some evidence that the principle of treatment in this regard is not maintained, at least as far as intellectual property is concerned. [4] [5] However, some mechanisms such as TRIPs seem to reduce bias towards foreigners. [4] In addition, overt discrimination against foreigners may be due to a difference in the impact of local legislation on foreigners (“involuntary discrimination”) rather than a difference in treatment (“intentional discrimination”). [5] These follow from the language of Article 1(1) of the TRIPS Agreement. Within this flexibility, WTO members can use creative solutions to transpose and apply concepts that the TRIPS Agreement merely formulates but does not define. Examples of this flexibility are notions such as novelty and inventiveness; or imperative emergencies for the purposes of compulsory licensing. Under the Paris Convention, the principle of national treatment allowed for what was generally referred to as “asymmetries”, i.e.: the adoption of different standards of protection per country according to different levels of national development (provided that national treatment had been ensured). The World Trade Organization `Trade-Related Aspects of Intellectual Property Rights ( TRIPS) Agreement sets out minimum standards of protection that each government must grant to the intellectual property of other WTO members, which has limited previous room for manoeuvre for flexible national approaches. While this principle is generally considered a desirable principle, custom means that a State may deprive aliens of everything it can deprive of its own citizens.

An opposing principle requires a minimum international standard of justice (a kind of basic due process of law) that would provide a basis for the protection of rights and access to judicial proceedings. .

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