Dirk De Bièvre, Arlo Poletti, Lars Thomann
To enforce or not to enforce? Judicialization, venue shopping, and global regulatory harmonization

Regulation & Governance, 2014: 8, issue 3, pp. 269 - 286
ISSN: 1748-5983 (print); 1748-5991 (online)

The regulation of intellectual property rights takes place in a range of international venues. This proliferation of international venues greatly enhances the potential for venue shopping. We argue that different levels of domestic regulation and differing degrees of judicialization account for actors' preferences over institutional venues. We take into consideration two scenarios. Conceiving of judicialization as the delegation of adjudication to an independent third party and the enforcement through multilaterally authorized sanctions, we show that: (i) upward regulatory harmonization leads actors preferring weak regulatory intellectual property rights standards to strive for venues with low degrees of judicialization, whereas those favoring stringent intellectual property rights protection prefer highly judicialized venues; and (ii) downward harmonization leads to the opposite constellation of institutional preferences. We show how these expectations hold by way of in-depth case studies of two instances of global intellectual property rights regulation: the regulation of plant genetic resources and intellectual property rights for medicines.