ICTSD: Specialised Intellectual Property Courts – Issues And Challenges

The establishment of the WTO Agreement on TRIPS (Trade Related Aspects of Intellectual Property Rights) and the proliferation of plurilateral, bilateral and regional agreements have significantly contributed to the increasing complexities of the intellectual property system. The emergence of new actors, reflecting conflicting expectations and the adoption of new trade agreements that often exceed the standards set by the TRIPS agreement, have resulted in a new density of rules that have further fragmented the international system. These developments have unavoidably called for further analysis by academics and stakeholders.

The second issue of the Series Global Perspectives and Challenges for the Intellectual Property System -a CEIPI-ICTSD joint publication- deals with issues and challenges around specialised intellectual property courts. The diversity of special tribunals is remarkable. The courts may have jurisdiction over controversies related to all aspects of intellectual property rights or simply with respect to certain intellectual property categories.

Professor Jacques de Werra (University of Geneva) wrote the lead article of this second issue. As highlighted by the author, under the TRIPS Agreement countries have the option to create specialised intellectual property courts and on this basis, countries are free to decide what types of judicial body or bodies have the jurisdiction to hear disputes. In this respect, the experience in both developed and developing countries varies. Jacques de Werra concludes that how advantageous or necessary it is to establish specialised courts in a given jurisdiction depends on a number of factors that go beyond intellectual property. Rather, this determination should take into account more general factors, including economics, the legal system and societal characteristics. Thus, the creation of specialised IP courts cannot be recommended in all circumstances.

The lead article is complemented by important contributions made by distinguished scholars on the current situation on specialised courts in the jurisdictions of Brazil, China, India and Uganda.