Experts Question U.S. Special 301 Process
"Ten years after the signing of the TRIPS agreement to help developing countries defend against unilateral actions against them by larger countries, the Office of the U.S. Trade Representative’s (USTR) annual report on trading partners’ protection of U.S. intellectual property rights is still questioned for its fairness or even legality," writes Willian New at Intellectual Property Watch.
Experts have interpreted the Special 301 evaluation to be limited to performance under existing laws and agreements. But critics charge that USTR uses the mechanism to push for gains that go beyond what exists, as it does in negotiations for free trade agreements. In addition, questions have arisen about the criteria for judging countries, as it could be argued that any position unfavourable to the United States could land a country on a problem list. They also question the accuracy of the findings in the report as they are based primarily on U.S. industry accounts, and the degree to which nations cited in the report have a say either before or after it comes out.
Nonetheless, many experts say it is unclear whether a formal challenge would succeed before the World Trrade Organization. In fact, most government officials are reluctant to publicly criticize the U.S. system. "For developing countries in particular, the possibility of retaliation in some other way is daunting," says David Vivas-Eugui, an attorney and program manager at the International Centre for Trade and Sustainable Development. “When you fight with Goliath, you have to make sure you kill him or he will come back to get you.�
The Special 301 annual review is part of a process designated under Section 301 of the U.S. Trade Act of 1974, which gives statutory authority to the government to impose trade sanctions against countries seen as violating U.S. trading rights. Countries are rated by how problematic they are found to be, the worst being “priority foreign countries,� followed by the “priority watch list� and the “watch list.�
Experts have interpreted the Special 301 evaluation to be limited to performance under existing laws and agreements. But critics charge that USTR uses the mechanism to push for gains that go beyond what exists, as it does in negotiations for free trade agreements. In addition, questions have arisen about the criteria for judging countries, as it could be argued that any position unfavourable to the United States could land a country on a problem list. They also question the accuracy of the findings in the report as they are based primarily on U.S. industry accounts, and the degree to which nations cited in the report have a say either before or after it comes out.
Nonetheless, many experts say it is unclear whether a formal challenge would succeed before the World Trrade Organization. In fact, most government officials are reluctant to publicly criticize the U.S. system. "For developing countries in particular, the possibility of retaliation in some other way is daunting," says David Vivas-Eugui, an attorney and program manager at the International Centre for Trade and Sustainable Development. “When you fight with Goliath, you have to make sure you kill him or he will come back to get you.�
The Special 301 annual review is part of a process designated under Section 301 of the U.S. Trade Act of 1974, which gives statutory authority to the government to impose trade sanctions against countries seen as violating U.S. trading rights. Countries are rated by how problematic they are found to be, the worst being “priority foreign countries,� followed by the “priority watch list� and the “watch list.�
1 Comments:
As far as I have learned, there is no legal problem with section 301, even when it is used in order to push for further bilateral agreements with foreign countries.
In fact, the addition to the special 301 provision when TRIPs was implemented in the U.S. provides that countries may be named on the priority watch list even when in compliance with obligations under agreements such as TRIPs. The addition of this section makes it clear that at least special 301 was not meant to be limited to the consideration of foreign countries' compliance with existing agreements.
These provisions are essential to the U.S. in achieving its policy goals of effective implementation of TRIPs, e.g. in China. TRIPs provides only a framework, and is insufficient to ensure effective results standing alone.
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