A Trade Agreement Creating Barriers to International Trade? - ACTA Border Measures and Goods in Transit

By its title, the Anti-Counterfeiting Trade Agreement (ACTA) considers itself a trade agreement. The negotiating parties, as well as its main proponents, emphasise the importance of strong intellectual property (IP) enforcement standards for international trade in IP protected goods. At the same time, the border measure rules in the ACTA draft text carry the potential to create significant barriers to international trade, especially in generic medicines. The controversy over transhipments of generic drugs from India to various developing countries seized while in transit through ports of EU member states demonstrates this potential: Merely on the basis of alleged patent infringements in the transit country, custom authorities seized several shipments of generic drugs - although the drugs did not violate any patents in the country of origin or the country of destination. Against the background of the EU transit seizure cases and the recent initiation of WTO dispute settlement proceedings by India and Brazil against the EU, this article examines the ACTA provisions on border measures. It focuses on the consistency of the ACTA rules with the existing international standards on IP enforcement and free trade under the WTO Agreement on Trade related Aspects of Intellectual Property Rights (TRIPS). Although primarily perceived as setting a floor of minimum standards only, some TRIPS provisions contain maximum standards or ‘ceilings’ for IP protection and enforcement beyond TRIPS standards. This in turn raises the question how ACTA rules relate to TRIPS standards, in particular those on border measures, as a matter of international law