Book review: The Future of Asian Trade Deals and IP

Let’s look East: in this recently published book The Future of Asian Trade Deals and IP, Prof. Kung-Chung Liu (Singapore Management University) and Prof. Julien Chaisse (City University of Hong Kong) assemble an icebreaking professional team of authors from trade law and IP law, both with strong Asian backgrounds, to re-examine two important trade deals (CPTPP and RCEP) and their IP Chapters. 

Background 

The backdrop for this book is set in the new era for trade deals opened up by the pulling out of the Trans-Pacific Partnership (TPP) by the US, after which, TPP evolved into CPTPP (The Comprehensive and Progressive Agreement for Trans-Pacific Partnership) between the remaining 11 members of TPP by suspending some of its provisions, over half of which were IP-related.

Whilst TPP excludes the two Asian giants, i.e. China and India, the RCEP (The Regional Comprehensive Economic Partnership) does includes such countries, and, of course, IP is again one of the most contentious issues during negotiations. Noteworthy that India has not signed a single major trade deal since joining the WTO Agreement in 1994. 

PART I FROM TPP/CPTPP TO RCEP (Chapters 2 - 5) 

The first part of this edited collection sets out to re-examine some basic principles of trade negotiations. 

In Chapter 2, Benjamin Tham seeks to address a perennial issue surrounding plurilateral FTA negotiations, i.e. secrecy, confidentiality and lack of inclusivity. He observes that the lessons learnt, and the challenge posed to future is how the right balance may be achieved between secrecy and allowing a plurality of views, feedback and opinions, whereupon he proposes a new model of multi-stakeholder involvement. 

China is at the heart of the discussions in Chapter 3 and 4. 

Liyu Han and Jiaxun Sun discuss the trade strategies and power games between China, US and India, and suggest that they should join efforts in building constructive relations to realise the Indo-Pacific dream. Specifically, China should pursue more comprehensive FTAs with more trade issues and deeper commitments, and support the multilateral trading system of the WTO, as this would benefit the whole world; China and US should give each other space and time to develop trade policies at their own pace. 

Then, Han-Wei Liu and Si-Wei Lu in Chapter 4 analyse the rise of China as a new global power and its role in shaping international IPRs by both domestic reforms and participation in bilateral and multilateral trade agreements. This chapter sketches out the changing face of the Chinese IPR regime in the pre-WTO era, revisits China’s evolving IPR regime in the post-WTO era, and carefully examines the design of IPR provisions in its FTAs and mega-regional negotiations. 

What recent efforts are being made by the Asian countries to set regional IP norms? To answer this question, in Chapter 5, Peter K. Yu looks into the provisions in the draft RCEP IP Chapter. Focusing on the four main branches of IP law as well as IP enforcement and pro-development measures, he suggests that the Asian countries’ willingness to accept higher IP standards in the RCEP negotiations, or at least their ambivalence towards those standards, shows that these countries have now started to recognise the alignment of the TRIPS norms with their self-interests. 

PART II INVESTOR-STATE ARBITRATION AND IP (Chapters 6 and 7) 

Part II examines IIAs (international investment agreements), whose recent developments towards great sensitivity to the public interest of the host state are highly relevant to the future directions of IPR protection, and ISDS (investor-state dispute settlement), a mechanism closely intertwined with IPR protection that allows private companies to sue states via arbitration. 

In Chapter 6, Tomoko Ishikawa explores two recent developments in the practice of IIA making, and observes that, given the imbalance between the lack of an effective mechanism to hold transnational corporations accountable for their conduct and the heavy protection of foreign investment in the IIA regime, and that in certain cases investors’ activities do have a grave impact on the public interest of the host state, an explicit recognition of internationally accepted standards of corporate responsibility in IIAs would be the direction the future IIA negotiations should take. 

In Chapter 7, Prabhash Ranjan extends the analysis of ISDS and IPRs interactions by looking at whether the issuance of a compulsory patent licence constitutes indirect expropriation under bilateral investment treaties (BITs) and FTA investment chapters by India, China, Malaysia and Thailand. This chapter suggests that these four countries and the like need to carefully draft their treaties, in order to curb arbitral discretion and provide regulatory space to adopt compulsory patent licensing without worrying about an ISDS challenge. 

PART III IMPROVING THE IP PROVISIONS OF CPTPP/RCEP AND REDEFINING GLOBAL IP NORMS (Chapters 8 - 13) 

Part III offers a selected analysis of the IP provisions of CPTPP and RCEP on how they can be improved or better implemented, and their potential to redefine some global IP norms. 

Three Chapters are dedicated to patent-related subjects. 

First, Prashant Reddy Thikkavarapu points out the exciting role which RCEP could potentially play to redefine norms related to pre-grant opposition and experimental use exceptions in international patent law by incorporating them, especially in the absence of the US and the EU. 

Then, Yaojin Peng analyses the role of patent term extension (PTE) in the pharmaceutical sector of, inter alia, China, Japan, Korea and Taiwan, and examines the pros and cons of different approaches taken by these jurisdictions. It demonstrates that the conditions for granting a PTE are highly controversial, the PTE systems and case law are still evolving, and there remain plenty of uncertainties to be clarified. 

Finally, Su-Hua Lee discusses how to mitigate the impact of patent linkage (PL), demanded only by CPPTT and not by RCEP, on access to medicine. The author looks at the referential lessons from the experiences that Singapore, South Korea and Taiwan have had with PL while striving to improve access to innovative drugs and the competitiveness of the domestic pharmaceutical industry, and seeks to achieve a proper balance of interests between original and generics companies. 

On plant variety protection, in Chapter 11, Christoph Antons discusses the rise of IPRs in plant material over the last few decades, the expansion of the International Convention for the Protection of New Varieties of Plants (UPOV) since the TRIPS Agreement, and the considerable impact of current FTAs and negotiations on these trends. 

What about copyright and trade marks? In Chapter 12, Kung-Chung Liu and Haoran Zhang critically discuss the CPTPP’s initiative for the pre-established damages for copyright infringement and trade mark counterfeiting. After examining the experiences in some Asian jurisdictions and identifying its potential downsides, this chapter suggests that the CPTPP interpret and apply this new regime by following the Japanese regime as a benchmark, and that the RCEP should abandon its current leaked version, which further strengthens, or denatures, pre-established damages for copyright infringement and trade mark counterfeiting and, at most, mirror the CPTPP. 

Haochen Sun completes the analysis of Part III by looking at the three-step test and copyright limitations. The RCEP’s draft IP Chapter comprehensively sets out a host of minimum standards for IP protection in the participating countries and has given rise to a plethora of concerns over negative effects such as the stifling of creativity, innovation, and economic growth. Therefore, this chapter argues that trade agreement negotiators should take limitations on copyright seriously and suggests that both professionalism and transparency are needed to guide the negotiation process of such agreements. 

Comment

Asian IP is a topic very much worth studying, especially under the recent trends in international trade and investment agreements which have been showing elements of change with regard to traditional approaches to trade rule-making. Meanwhile, as Asian countries’ economic strength continues to increase, the importance they have attached to IP and IP cooperation, and their ability to handle IP disputes continue to rise. 

This book is a reflection of Asian-IP-passion: it is the result of the conference The Future of Asian Trade Deals and IP hosted by Applied Research Centre for Intellectual Assets and the Law in Asia (ARCIALA) of Singapore Management University in December 2017, in which academics and experts, from both trade law and IP law with strong Asian backgrounds, gathered together strived to explore how and to what extent Asian economies can shed some light on CPTPP, rectify the RCEP IP Chapter, and even redefine some aspects of international IP norms since, practically speaking, the US and the EU were not part of the CPTPP and RCEP talks. 

Although in November 2019, India, for the time being, announced to opt out of RCEP, the referential value of the analyses presented in this book remains undiminished. This book is a welcome addition to the rather limited literature that looks at the CPTPP and RCEP from Asian perspectives, and it will be a useful resource for deciphering the interrelation between FTAs and IP, for IP scholars and practitioners alike. 

Published: 28-11-2019 

Format: Hardback 

Extent: 320 

ISBN: 9781509922772 

Availability: check here