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Trade and Sustainable Development: Roles of Dispute Settlement and IPR

On 14th December, 2023, the Embassy of Switzerland, together with the University of Geneva, the Indian Institute of Foreign Trade, the National Law University Delhi, and Ex Lege Chambers organized a conference on ‘Trade and Sustainable Development: Roles of Dispute Settlement and IPR’ at the India Habitat Centre.

The event delved into the pivotal roles of dispute settlement and intellectual property rights (IPR) within the realm of international trade and sustainable development. Ambassador Dr. Ralf Heckner opened the plenary session, emphasizing the symbiotic relationship between trade and sustainable development and spotlighting the 75-year bilateral ties between India and Switzerland.

Plenary Session Highlights: Prof. James Nedumpara voiced concerns about the potential adverse effects of unilateral measures on global sustainability, underscoring the necessity for effective international dispute resolution mechanisms. Dr. Christine Kaddous emphasized the interconnectedness of trade and sustainable development, advocating for innovation-driven progress and the indispensability of IP protection. Mr. Rajesh Agrawal, Additional Secretary, Department of Commerce, stressed the multifaceted intersection of trade with IP and financing, emphasizing the need to integrate technological advancements for sustainable growth while ensuring equitable access.

Panel I – Role of Intellectual Property Rights in International Trade dominated by Global Value Chains – TRIPS or TRIPS plus?

The session was inaugurated by Dr. Mukherjee with reference to Rudyard Kipling’s poem “The Ballad of East and West”. He introduced the audience with differences between West and East and why we need to understand both in order to achieve sustainable development.

Moderated by Dr. Santanu Mukherjee, this panel, featuring Ms. Archana Jatkar, Ms. Ojasvita Srivastava, Dr. Vivek Kashyap, and Dr. Yogesh Pai, delved into the debate of TRIPS versus TRIPS plus. The key highlights of this panel are as follows:

  • Explored the role of IPRs in international trade and sustainable development.
  • Discussed the link between WIPO’s Innovation Index and a country’s growth.
  • Addressed issues of trademark violation in the digital environment and data exclusivity in the pharmaceutical industry.
  • Examined the importance of industry standards and FRAND in the world of seamless connectivity.

Dr. Yogesh Pai, Associate Professor (Law), Co-Director, CIIPC, DPIIT-IPR Chair, National Law University Delhi, emphasised on need for IPRs for players depending on strength of players in the market. He gave examples from digital market where big players like Google give away IP rights due to opportunity cost associated with acquiring IP rights but at the same time for entrepreneurial players like start-ups IP rights are important to enter the market and create competition. Therefore, IPR rights are equally important to maintain strong competition in markets.

In response to the question, ‘What is role of industry standards in the world of seamless connectivity, what is FRAND in SEP disputes? and is it decided by governments or markets?’ Dr. Pai stated that recently courts have started setting royalty rates in SEP disputes which are globally applicable i.e. extraterritorial application of royalty rates. This has led to a situation where anti-suit injunctions have come up to stop possibility of decisions contrary other jurisdictions’’ judicial decisions. In such situations we will face more dispute involving competition law and extra territorial application of laws. Governments while negotiating need to understand industry requirements and industry needs to understand the nuances of monetization models.

Another question which was posed was, ‘In case of patent licensing involving portfolio of patents, how royalty rates are preferred during licensing negotiations keeping in mind the fact that some of patents may not be enforceable in a concerned jurisdiction?’
Dr. Pai argued that royalty rates for a patent portfolio may differ from individual patents due to the ‘single monopoly profit theorem.’ Using the film industry as an example, he suggests that a producer can charge the same for a license, whether for a single film or a bundle. He advocates for international forums to resolve conflicting interpretations of global patent licensing agreements, noting potential anti-competitive concerns with insisting on patent bundles. He emphasizes evaluating the impact on the entire market rather than individual players.

Panel II – Multilateral Trade and Sustainable Development: Importance of Dispute Resolution:

Moderated by Pritam Banerjee, this panel featured Prof. Christine Kaddous, Mr. Pranav Kumar, Prof. Prabhash Ranjan, and Ms. R.V. Anuradha.

  • Discussed the importance of dispute resolution in international trade for fairness.
  • Explored concerns about the non-functioning of the WTO dispute settlement mechanism.
  • Examined India’s concerns in bilateral negotiations and the role of the Multi-Party Interim Appeal Arbitration Arrangement (MPIA).
  • Considered the preference of private sector for transparent and accountable dispute resolution.

In summary, the event provided valuable insights into the intricate dynamics of international trade, sustainable development, and the pivotal roles played by dispute resolution mechanisms and intellectual property rights. Dr. Pai’s contributions were central to the discussions, emphasizing the need for a nuanced and balanced approach to these complex issues.

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