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Barbosa, Denis Borges --- "Minimum Standards vs. Harmonization in the TRIPS Context: The Nature of Obligations under TRIPS and Modes of Implementation at the National Level in Monist and Dualist Systems" [2010] ELECD 444; in Correa, M. Carlos (ed), "Research Handbook on the Protection of Intellectual Property under WTO Rules" (Edward Elgar Publishing, 2010)

Book Title: Research Handbook on the Protection of Intellectual Property under WTO Rules

Editor(s): Correa, M. Carlos

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847209047

Section: Chapter 3

Section Title: Minimum Standards vs. Harmonization in the TRIPS Context: The Nature of Obligations under TRIPS and Modes of Implementation at the National Level in Monist and Dualist Systems

Author(s): Barbosa, Denis Borges

Number of pages: 58

Extract:

3 Minimum standards vs. harmonization in
the TRIPS context: the nature of
obligations under TRIPS and modes of
implementation at the national level in
monist and dualist systems
Denis Borges Barbosa*


Article 1 Nature and Scope of Obligations
1. (a) Members shall give effect to the provisions of this Agreement. (b)
Members may, but shall not be obliged to, implement in their law more exten-
sive protection than is required by this Agreement, provided that such protec-
tion does not contravene the provisions of this Agreement. (c) Members shall
be free to determine the appropriate method of implementing the provisions of
this Agreement within their own legal system and practice.

The effect of TRIPS provisions
Some international legal instruments are created to be inductive, not pre-
scriptive. Indicating areas or principles to which its parties agree, those
inductive instruments (sometimes described as soft law1) simply declare
the extent of such agreement, or purport to propitiate voluntary actions
by the signatories. By stating in its very first provision that `Members shall
give effect to the provisions of this Agreement', TRIPS dispels any doubts
about its prescriptive nature.
The legal duty that requires that the TRIPS Agreement shall be made
effective results not only from the specific consent from the member states
to do so, but also from a general rule of international law:

The requirement to implement an international agreement is implicit in the
obligation to perform it in good faith. The obligation to perform in good faith
(`pacta sunt servanda') ...