AUSTRALIA'S INTERESTS UNDER TRIPS DISPUTE SETTLEMENT: TRADE NEGOTIATIONS BY OTHER MEANS, MULTILATERAL DEFENCE OF DOMESTIC POLICY CHOICE, OR SAFEGUARDING MARKET ACCESS?

The TRIPS Agreement subsumes and applies the earlier international law of intellectual property (notably the Paris and Berne Conventions), but is typically distinguished from this juristic heritage by the still controversial reframing of intellectual property law as trade law, and by the more rigorous and compelling character of the dispute settlement mechanism that purportedly gives it 'teeth'. The threat of 'trade sanctions' would suggest that a realist assessment of the likely practical impact of TRIPS dispute settlement would govern national policy choices, more than compliance viewed as an end in itself. This paper reviews the actual interests defined and defended in TRIPS dispute settlement and seeks to illuminate the true character of the TRIPS Agreement as a regime of intellectual property standard-setting within a trade law framework. It concludes that practical experience confirms that a theoretical reconciliation of the supposed tension between intellectual property and 'real' trade law, and the development of an integrated, systematic jurisprudence of the TRIPS Agreement as the most robust defence of legitimate domestic policymaking on knowledge economy issues are now overdue, recalling that the true interpreter of the treaty text — the one ultimately bound to deliver on the promises of public welfare embedded therein — is a domestic policymaker seeking in good faith to establish an optimal balancing of interests through the practical craft of domestic policymaking, rather than a political or legalistic abstraction. [ABSTRACT FROM AUTHOR]