The New Kid on the Block - a treaty on intellectual property and genetic resources

For those interested in intellectual property and international rule making, a new kid is on the block! 

There is a new international treaty on intellectual property, Genetic Resources and Traditional Knowledge associated with genetic resources. Each of these terms have a special meaning and the WIPO website describes the thrust of the treaty as follows:

"The Treaty, once it enters into force with 15 contracting parties, will establish in international law a new disclosure requirement for patent applicants whose inventions are based on genetic resources and/or associated traditional knowledge."

The new treaty can be found here. 

Essentially pertaining to disclosure requirements for patents connected to genetic resources of traditional knowledge associated with genetic resources, the treaty has been heralded as a successful multilateral effort at making international law.

What a labour dispute brought out in an international trade arena!

This is a post about a dispute adjudicated under the USMCA related to violation of labour rights between the United States and Mexico. A state to state dispute settlement, it involved the question whether certain certain labour rights were denied in Mexico which led to violation of Mexico's obligations under the USMCA.

International news about the high profile, labour related dispute that got Mexico to the dispute panel is found here.

The USTR statement on the dispute is here.

The panel findings under the USMCA is here. Fascinating discussion on what a covered facility is, how jurisdiction of the panel is determined and how labour disputes can end up in international trade dispute settlement.

The panel ultimately found that Mexico was not in violation of its obligations under the USMCA but the findings was not on the merits of the case. Though the Mines were decided to be "Covered Facility" under the USMCA, the panel found that it had no jurisdiction since the acts were not covered under the present laws of Mexico and hence Mexico had not violated its obligations under the free trade agreement.

Some observations:

1. For those free trade agreements which have labour related obligations linked to dispute settlement, a flavour of things to come. Measures that impact labour rights, labour disputes, issues of freedom of association and collective bargaining can be a subject of intense international questioning.

2. The panel decision had a fascinating discussion on whether all facilities that produce goods and services irrespective of whether they are exported to the other Party are covered by the agreement. The US did canvas this expansive definition. The panel linked it to benefits under the free trade agreement. In para 46, the panel stated that if parties are seeking special preferential tariffs, the parties are expected to follow rules - and hence there has to be a trade nexus. Either the facility should export to the other Party or the goods or services of the respondent party must compete with the goods of the other Party.

3. Another interesting discussion was on what amounts to "competition" in the trade agreement. What is the burden of proof required? Does it involve direct marketing campaigns against each other or is it sufficient to be like and substitutable goods bought and sold in the same market?

4. What is the learning for countries crafting their FTAs with different templates? Countries should be aware and fully equipped with dealing with the varied interpretations and likely consequences of having provisions that can make domestic action susceptible to international dispute settlement legal scrutiny. Some would argue that it is a good thing - in the interests of consumers and other stakeholders within the country. Some would argue it is against domestic, national business interest impacting competition.

For now, something to chew on in terms of what labour provisions can bring to the table in international trade!

DEPA has an addition

In 2020, I had blogged here and here about the Digital Economy Partnership Agreement (DEPA) entered into between Singapore, New Zealand and Chile in 2020. The Agreement itself has some pathbreaking provisions on digital trade in the realm of international rule making.

They have an addition now. The Republic of Korea has acceded to the DEPA recently. The press release is here.

What struck me was the time period it took to complete the accession - Chile, New Zealand and Singapore signed the DEPA in June 2020. Korea formally applied to join the DEPA in September 2021. And it was completed in 2024.

The World Economic Forum has this to say about these digital agreements here.

"It is clear that the future of trade is digital. Digital economy agreements have already pushed the boundaries of traditional trade agreements, and more governments are eager to join this new frontier. Ultimately, the goal is not just to sign more trade agreements or DEAs, but to advance global trade and inclusive economic growth in the digital age. The World Economic Forum welcomes further public-private cooperation to maximize the benefits of this new trade tool and, more broadly, advance digital transformation and innovation around the world."

I was just trying to extrapolate bilateral and smaller regional agreements to multilateral negotiations. Trade negotiations do have a life of their own - known to move at glacial speed.