TRIPs: A Link Too Far? A Proposal for Procedural Restraints on Regulatory Linkage in the WTO

In dramatically expanding the reach of international intellectual property law, the TRIPs Agreement both epitomizes a new trend toward globalized regulation and signaled a controversial shift in approach by the WTO away from its narrow focus on trade. Equally controversial was the manner in which TRIPs came about. By strategically linking intellectual property protection to substantively unrelated trade negotiations, developed countries were able to push through a much more ambitious harmonization of IP law than would otherwise have been possible. Such package dealing making offers a powerful mechanism to advance global governance. However, unrestricted use of linkage strategies risks suboptimal outcomes ranging from regulatory capture to procedural paralysis. This Article critically examines the TRIPs Agreement as a case study to evaluate such competing views on linkage. It concludes by suggesting procedural safeguards to channel the use of linkage strategies towards enhancing global welfare