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The intellectual property protection chapters are increasingly common in Regional
Trade Agreements.16 For example, since the implementation of NAFTA, all free trade
agreements negotiated by the US have an intellectual property protection provision.17
Such provisions are referred to as TRIPS-plus and they generally provide higher levels
of protection that those required in TRIPS.18 But why do countries agree to give up
the freedom provided in TRIPS, which allows them to regulate their own healthcare
system? The reason might be in the US’s powerful negotiation strategy.
During the negotiations of FTAs, the US typically acknowledge at the beginning of
the talks that IP Chapter is the most controversial and, therefore, should be discussed
at the end of the negotiations, when all the other chapters are wrapped up. However, at
the end of the negotiations, the US would approach the other parties, saying that they
have already reached consensus on all the other issues in the FTA and that there is no
more room for compromise. By showing that everything else has already been agreed
on and that refusing the US proposal on intellectual property would put the whole
FTA in danger, the US creates a “take it or leave it” situation. Therefore, the partners
will typically accept even controversial demands from the US.19
A similar strategy might have been adopted in the negotiations of the most recent
mega-regional trade agreement, the Trans-Pacific Partnership. The IP Chapter in this
agreement (especially the provisions related to pharmaceuticals) was the sticking point
in the TPP negotiations.20 During the TPP negotiations, commentators described the
US negotiation strategy as a “strategy of exhaustion” and “bullying of negotiators on
the crucial intellectual property chapter.”21 The US apparently was the one who was
setting the agenda and timetable.22 For example, the US had about twenty negotia-
tors for the intellectual property chapter, as opposed to some countries who had only
one delegate.23 Moreover, the intellectual property talks on medicines were unexpect-
16 Gantz, supra note 5.
17 Laura Ching “AUSFTA, KORUS FTA and NowTPP: Free Trade Agreements are Now Reaching Further
into Domestic Health Policies Than Ever Before” (2013) 22 Currents Int’l Trade L.J. 26 [KORUS FTA].
18 Meredith Lewis Kolsky “The Trans-Pacific Partnership: New Paradigm of Wolf in Sheep’s Clothing?“
(2011) 34 Int’l & Comp. L. Rev. 27 at 43.
19 Frederick M. Abbott, Groundhog Day: Health-related provisions in FTAs and TRIPS, speech delivered at
“The changing global innovation and intellectual property policy landscape: present challenges and future
directions (II): TRIPS at 20 and beyond”, 30-31 Oct 2014, online:
default/files/Abbott%20-%20FTAs%20and%20Groundhog%20Day%20Nov%202%202014.pdf >.
20 Discussion in class with prof. Bjorklund on 12th November 2015.
21 “US Bullying at TPP Negotiations for Big Pharma Profits. Intellectual Property Rights and the Sale
of Generic Drugs,” Global Research News (24 November 2013) online <
us-bullying-at-tpp-negotiations-for-big-pharma-profits-intellectual-property-rights-and-the-sale-of-
generic-drugs/5359221>.
22 Ibid.
23 Ibid.