Dirk De Bièvre, Lars Thomann
Forum Shopping in the Global Intellectual Property Rights Regime
The regulation of intellectual property rights (IPR) takes place in a range of international forums, ranging from the World Intellectual Property Organisation (WIPO), the World Trade Organisation (WTO), the Food and Agricultural Organization (FAO), the World Health Organization (WHO), to the Union for the Protection of New Varieties of Plants (UPOV). This proliferation of international forums within which state representatives and constituents can pursue their interests has greatly enhanced the potential for forum shopping. In this paper, we explore three reasons for forum shopping: diverging actor preferences, government agency specialisation, and differing degrees of judicialization.
We devote particular attention to this last reason, as we hypothesise that judicialization – the presence of binding third party adjudication and the threat of sanctions -, is a form of institutionalisation that increases the likelihood for issue linkage within a particular forum. Actors who prefer weak IPR standards (mostly IP importing countries) strive for forums with low degrees of judicialization, whereas IP exporting countries prefer relatively highly judicialized forums. However, actors may simultaneously seek lower standards in one area of IPRs (e.g. the use of traditional medicine) and higher ones in another area (e.g. patent protection on pharmaceuticals). We explore our theoretical expectations in three substantive subfields of global intellectual property regulation: the regulation of plant genetic resources, IPR for medicines, and the form of protection for traditional knowledge.