Private Industry’s Impact on U.S. Trade Law and International Intellectual Property Law: A Study of Post-TRIPS U.S. Bilateral Agreements and the Capture of the USTR

The debate surrounding TRIPS-plus agreements is contentious and important. “TRIPS” is an acronym for the Trade-Related Aspects of Intellectual Property Rights agreement, which established the first set of minimum standards of protection for intellectual property rights internationally and included “flexibilities” to exempt developing countries from certain standards in light of public policy. Bilateral agreements enacted after TRIPS have undermined the exercise of such flexibilities, and are characterized as “TRIPS-plus.” Specifically, TRIPS-plus agreements create conflicts with and pose threats to public health, the environment, biological diversity, food security, access to knowledge, and human rights in numerous countries. This paper is based on a comparative study of U.S. bilateral agreements that entered into force after TRIPS. By analyzing forty-one U.S. bilateral agreements, the author concluded that (1) U.S. bilateralism in the post-TRIPS era is dominated by two forms of agreements; (2) more than half of such agreements do not contain facially TRIPS-plus provisions; (3) no two agreements are identical in the provisions they include and exclude; (4) there are number of TRIPS-plus provisions that continuously appear and present significant issues for U.S. trade law and international intellectual property law. Of concern is the fact that U.S. bilateral agreements are overseen by a captured agency, the Office of the U.S. Trade Representative (USTR). Consequently, U.S. trade law and international intellectual property law is the product of a one-sided and non-transparent negotiation process, which enables future TRIPS-plus bilateral agreements being signed and further harm being done to social welfare