Turning Points in Multilateral Trade Negotiations on Intellectual Property

Larry Crump Daniel Druckman Department of International Business George Mason University Griffith University Fairfax Virginia, U.S.A. Nathan Campus University of Southern Queensland Brisbane, Qld. 4111 Australia Qld. Australia (E-mail: [email protected]) (E-mail: [email protected])

Paper Presented at the 24 th International Association for Conflict Management Annual Conference Istanbul, Turkey 3 – 6 July 2011

Detailed chronologies of events that transpired during the discussion of intellectual property issues (TRIPS) in the GATT Uruguay Round and prior to and during the WTO Doha Ministerial are used to trace the unfolding negotiation processes through time. Of particular interest are departures from earlier trends in the chronologies: A departure is defined as a clear and self-evident change from earlier events or patterns in the form of an impactful decision taken by one or more parties. By coding the causes (precipitants) and effects (consequences) of the departures, we perform a turning points analysis: These three-part sequences reveal the triggers and impacts of departures during the extended TRIPS negotiation process. The analyses will allow a comparison of the patterns that unfolded during the two phases of TRIPS negotiations. This comparison will highlight the breakthroughs that occurred during the Uruguay Round and the crises that emerged later, prior to and during the Doha Ministerial. Improving the effectiveness of multilateral trade negotiations depends in part on understanding how critical turning points emerge. This article also has implications more generally for the way that comparative analyses of international negotiation are performed and for the effectiveness of negotiating in the multilateral context.

Key words : Departures, GATT Uruguay round, intellectual property, international trade negotiation, turning points, WTO Doha Ministerial

Electronic copy available at: http://ssrn.com/abstract=1872135 Turning Points in Multilateral Trade Negotiations on Intellectual Property 1

The idea of a turning point has captured the imagination of theorists and researchers in a variety of social science fields. It has been a useful concept in studies conducted from a psychoanalytic perspective (e.g., Rothstein 1997), in analyses of communication in relationships (e.g., Hopper and Kent 1990) and divorce counseling (Graham 1997), in addiction research (Schulenberg et al. 1997), in a variety of analyses of child, adolescent, and life-span development (see Cohen 2008, for a review of these studies), and in a popular treatment of macro-level social change (see Gladwell 2000, on tipping points). The concept has been useful as well in studies of negotiation processes (Druckman and Olekalns 2011).

These studies include cases of U.S. base rights talks (Druckman 1986), free trade (Tomlin

1989), international (Chasek 1997) and domestic (Hall 2008) environmental negotiations, nuclear arms control (Druckman et al. 1991), and the conflict between the Free Aceh

Movement and the Republic of Indonesia (Leary 2004). Thirty-four cases concerning security, the environment, and trade were analyzed in Druckman’s (2001) comparative study of turning points. The analyses were guided by a three-part framework that consists of precipitants, departures, and consequences. This framework is applied to two negotiation cases over intellectual property (IP) in the present study.

The analysis focuses on Trade Related Aspects of Intellectual Property Rights

(TRIPS) examined in two negotiations. The first negotiation, referred to in this article as

TRIPS I, was the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) conducted in the 1980s – 1990s. The second, referred to as TRIPS II, was negotiated prior to and during the World Trade Organization (WTO) Ministerial held in Doha Qatar in

November 2001. It is interesting to note that these two cases sit on either side of a significant

1 The order of authorship is alphabetical. The authors contributed equally to this article.

Electronic copy available at: http://ssrn.com/abstract=1872135 turning point in multilateral trade policy, as the Uruguay Round represents the end of the

GATT era and the Doha Ministerial is the first significant step of the emerging WTO era.

A turning points analysis of negotiation has practical implications as well.

Recognizing these critical moments during the process or knowing how to bring them about can spur progress toward agreements. Earlier studies of international negotiation showed that turning points contributed in important ways to outcomes (e.g., Druckman et al., 1991;

Druckman, 2001). In the multilateral context, coalitions of parties often act to precipitate departures that move the process in the direction of agreements. These actions contribute to effectiveness and will be a focus of the analyses to follow.

The next section provides background on the context of intellectual property rights

(IPR) followed by a description of the respective negotiation processes. Then, we discuss how the three-part turning points framework guides coding of these processes: The coding traces connections between each aspect of the framework (precipitants, departures and consequences). Process-tracing results for each case are presented next followed by an interpretation of these findings. The article concludes with a section on lessons learned that paved the way for further research and for the practice of multilateral negotiation.

TRIPS Cases

GATT–IPR Context

Intellectual property represents the interests of many commercial sectors of society but the field can generally be divided into copyright, trademarks and patents. Book publishers, writers and authors, and those involved in film, television, music, computer software and more each have an interest in a national and international regulatory framework that protect the rights of the creator through copyright protection. Design and fashion companies are the most prominent sectors concerned with trademarks although company names and logos also

Electronic copy available at: http://ssrn.com/abstract=1872135 qualify for trademark protection. But the “big money” in intellectual property (IP) is in the protection of inventions, via patents, sought by companies in technology, bio-technology, pharmaceuticals and related fields. This diversity of IP commercial activity served, for many years, as a barrier in building an international intellectual property rights (IPR) movement.

The World Intellectual Property Organization (WIPO), based in Geneva and established in 1967, was not the first response to international IP concerns but it was the first serious attempt. However, WIPO appeared incapable of responding effectively to intellectual

“piracy” and a host of other issues. It did not help that international IP challenges grew exponentially as the global economy slowly evolved. WIPOs inclusion in the democratically- grounded UN system in 1974 did not contribute to its ability to meet the expectations of IPR leaders, as some argued that WIPO had become aligned with developing countries.

Negotiations involving Trade-Related Aspects of Intellectually Property Rights

(TRIPS I) is an international story driven primarily by American corporate interests. Today

TRIPS is an accepted part of the international trade policy infrastructure, but there was real doubt in the 1980s that IPR could be addressed in a trade policy framework, as it was a foreign and untested idea. Edmund Pratt, Pfizer CEO and John Opel, IBM Chair served on the US President’s Advisory Committee on Trade Negotiations (ACTN) and over a period of years assisted in shifting US government perceptions.

United States Trade Representative (USTR) Clayton Yeutter created an Assistant

USTR for International Investment and Intellectual Property in 1985 and then asked the private sector to communicate their concerns on IP issues. The private sector responded by presenting “A Trade-Based Approach for the International Copyright Protection for

Computer Software” (by Jacques Gorlin a former ACTN economist). This document essentially became the initial blueprint for USTR IPR strategy.

GATT Negotiations: TRIPS I

USTR Clayton Yeutter sought private sector assistance to get IPR on the upcoming Uruguay round multilateral trade negotiation agenda, which was sponsored by the General Agreement on Tariffs and Trade (GATT). Yeutter was especially concerned that European and Japanese trade officials appeared uninterested in including IPR in the GATT negotiations. Opel and

Pratt responded by establishing the Intellectual Property Committee (IPC) in early 1986, which included 11–14 US corporate leaders (over a ten year period) from diverse industrial sectors. Representatives of the IPC immediately met with their colleagues in Europe including the Union of Industrial and Employers’ Confederations of Europe (UNICE) and the

Japan Federation of Economic Organizations (Keidanren). Initial reactions to this US initiative were not warm but after much dialogue the IPC persuaded their counterparts to pressure their national governments to include IPR on the GATT agenda. These efforts were successful. IPR was included, via reference to trade in counterfeit goods, under the Trade

Negotiations Committee (TNC) within the GATT Uruguay Round in September 1986.

The US-based IPC worked closely with UNICE and Keidanren and over the following year produced a consensus document, which assisted the US, EU and Japan in presenting a detailed initial IPR position within the GATT negotiations. In the second year of the GATT

Uruguay round the IPC, UNICE and Keidanren crafted a consensus document entitled “Basic

Framework of GATT Provisions on Intellectual Property” which further assisted the US, EU and Japan in adopting a common position within these negotiations.

Independent of these international developments was action within the US Congress to pass the “Omnibus Trade Competition Act” which included “Special 301” provisions that provide the US government with authority to undertake punitive unilateral action against countries believed to have IP practices that resulted in unfair access to US firms. The inaugural Special 301 “watch list” included Brazil, China, India, Mexico, Saudi Arabia,

Taiwan and Thailand. Indirectly, US unilateral IP action could be used to block coalitions that might form against GATT IPR negotiations.

It is interesting to note that some developing countries thought that the venue choice was between WIPO and GATT but with the initiation of US unilateral IP action, via the

Special 301 process, nations quickly concluded that the choice was actually between GATT multilateral negotiations or USTR bilateral negotiations.

GATT IPR negotiations pitted developed and developing countries (in a North–South context) against each other, as they debated over the parameters of the GATT IPR agenda. A

“Group of Ten” led by India and Brazil vehemently protested the inclusion of IP in GATT and at the mid-term GATT review, in Montreal in late 1988, negotiations deadlocked because of IPR and other trade issues. This deadlock was broken at a TNC meeting several months later. The outcome was the adoption of a GATT–IPR framework, which indicated that many nations accepted the legitimacy of IPR within the GATT system and that GATT would have jurisdiction over IPR. India was the last country to accept that GATT could play a role in

IPR. Now negotiations focused on resolving the many issues contained within the IPR framework. Initial expectations that negotiations would be limited to counterfeit goods were no longer valid, as all IPR issues were now under consideration through the adopted GATT framework.

A ten-plus-ten (10 developed countries and 10 developing countries) working group established an IPR forum within the TNC, which produced a draft Composite Text for the

Brussels Ministerial meeting, held in December 1990, although the Ministerial ended in impasse because of disagreement over an unrelated issue – agricultural subsides. IP issues between developed and developing countries were pretty much resolved and now the US, EU and Japan had to settle some remaining issues through informal negotiations. The final IPR agreement within GATT was reached in late 1991. However, other unresolved issues delayed

6 the GATT Uruguay outcome until late 1993 when negotiations finally concluded. The GATT

Uruguay agreement was finalized and signed at a GATT Ministerial in Marrakesh in April

1994 and TRIPS entered into force in January 1995.

WTO–IPR Context

The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is attached as Annex 1C to the Final Act Embodying the Results of the Uruguay Round of Multilateral

Trade Negotiations (1994). TRIPS Articles 30 and 31 considers IPR exceptions and “Other

Uses Without Authorization of the Right Holder” (1994: 13-15).

As the Human Immunodeficiency Virus (HIV) began to spread, global society confronted issues dealing with the Acquired Immunodeficiency Syndrome (AIDS) in the

1990s. In response to this pandemic, states such as Brazil, Thailand and South Africa sought to use the flexibilities granted through TRIPS Articles 30 and 31 to secure compulsory licensing. Such flexibilities allow domestic firms to manufacture and sell generic drugs without permission from the IPR holder but with adequate compensation to the IPR holder.

For example, Thailand planned to produce a generic version of the AIDS medicine ddI though flexibilities found in TRIPS. South African President Nelson Mandela signed a law which allowed the South African Minister of Health to authorize broad-based compulsory licensing to manufacture generic HIV/AIDS medicine. And Brazil passed a patent law requiring that a patent holder must engage in “local working” of a patient to enjoy patent rights, where “local working” meant manufacturing, although TRIPS indicates that patent rights could be enjoyed if a patent holder is engaged in importation.

The United States responded to these attempts to use TRIPS flexibilities. On behalf of the US-based Pharmaceutical Research and Manufacturers Association (PhRMA), the United

States government threatened sanctions on core Thai exports. The Thai government quickly

7 dropped its compulsory licensing plan. PhRMA recommended that South Africa be named as a “Priority Foreign Country” and the USTR placed South Africa on their Section 301 “watch list” which could lead to US trade sanctions. Furthermore, the South African unit of PhRMA challenged these new South African IP laws in Pretoria High Court. “This aggressive [US] campaign actually hastened the mobilization of opposition to it” (Odell & Sell 2006: 92).

By the late 1990s non-governmental organizations (NGOs) were effectively utilizing the international media, especially the northern-hemisphere media, to argue that TRIPS had not been intended to contribute to unnecessary deaths but this was in fact occurring.

Eventually, this global dispute was presented as a contest between those that sought patent monopoly power versus the rights of states to protect public health.

Media attention regarding TRIPS and public health brought together a large and diverse coalition that included a collection of international NGOs (OXFAM, Medecins sans

Frontieres, ACT UP Paris, the Quaker Geneva Secretariat, etc), UN agencies such as the

World Health Organization and the UN Commission on Human Rights, states fighting a pandemic such as Brazil, India, and Thailand plus the 41 member WTO African Group, and several enlightened European states such as Norway and the Netherlands.

Substantial negative media attention regarding TRIPS and public health also contributed to a shift in key party positions. The United States, for example, withdrew two years of objections to South African law that allowed broad-based compulsory licensing and shortly thereafter removed South Africa from its Special 301 “watch list” in 1999. However, it is also clear that the US government lacked unity of purpose during this period, as the

USTR, at the request of PhRMA, asked the WTO to establish a panel to resolve their TRIPS dispute with Brazil. Sixteen months after initiating their case against Brazil the USTR withdrew from it; essentially stated that this strategy was counter-productive to US interests.

Around that same time PhRMA decided to end its lawsuit against the South African

8 government. Nevertheless, the WTO, the US government and PhRMA continued to argue in the international media that enforcement of patent protection through TRIPS is critical so that funds are available to invent new drugs.

WTO Negotiations: TRIPS II

Throughout this process the WTO TRIPS Council was unengaged, as the Council was caught up deliberating over geographic indicators (an EU initiative), rules on plant and animal inventions, technology transfer incentives, electronic commerce, etc. A critical event occurred in April 2001 with the rotation of the WTO TRIPS Council chair to Zimbabwe who also happened to chair the WTO African Group of 41 member states. Zimbabwean

Ambassador Boniface Chidyausiku argued that “the WTO could no longer ignore the access to medicines issue, an issue that was being debated outside the WTO but not within it” (Odell

& Sell 2006: 98).

Negotiations had finally moved from informal actions into a formal decision making arena through the WTO TRIPS Council. The first TRIPS Council Special Session on Access to Medicine, in June 2001, held discussions on compulsory licensing, parallel imports, and most important, the Council considered the possibility that a special declaration be adopted at the upcoming Ministerial Conference in Qatar affirming that nothing in the TRIPS

Agreement should prevent WTO Members from taking measures to protect public health.

The US seemed to be taken by surprise.

At the second meeting, in July 2001, a coalition led by the US and Switzerland sought to minimize the problem and to divert attention from the fundamental issue of access to medicine. The African Group condemned such action and argued that this Special Session must ensure that the implementation of the TRIPS Agreement does not serve as an obstacle to affordable medicines and the protection of public health. At the next Special Session in

September 2001 the US and Swiss led coalition argued that TRIPS already has sufficient flexibilities, while a coalition of developing countries continued to argue that a Ministerial- level declaration be adopted.

As the process evolved, two draft Ministerial declarations emerged one led by the US and other developed countries, and the other championed by a coalition of developing countries; the former argued that TRIPS already had sufficient flexibilities and the latter sought the sweeping general principle that was first introduced at the June 2001 Special

Session. Members of the developing country coalition agreed that both options could appear in a Ministerial declaration but if their option was removed then the entire Doha agenda might be reconsidered. The WTO Chair examined each alternative and sought to negotiate a compromise between the two sides but was unsuccessful in this effort. He then submitted each alternative to the Doha Ministerial.

The WTO Ministerial held in Doha Qatar, in November 2001, included 146 trade ministers. Mike Moore, WTO Director General, feared deadlock and so he appointed Luis

Ernesto Derbez of Mexico to mediate between the two sides concerning TRIPS and public health. The US made various unsuccessful attempts to divide the coalition of developing countries and then, in the end, the US was forced to shift toward the position of the developing countries. The US had to choose between the interests of the pharmaceutical industry or appearing to be against access to medicine. In the end the US government did not want to be seen to be against access to medicine and so they briefly abandoned their alliance with the pharmaceutical industry.

The US and Brazil finalized the text and each side made compromises but the overall agreement was in the context of TRIPS and public health. The Declaration on the TRIPS

Agreement and Public Health was adopted at the Doha WTO Ministerial on 14 November

2001. The Declaration includes seven paragraphs. Paragraph 4 reads “We agree that the

TRIPS Agreement does not and should not prevent members from taking measures to protect public health...” The paragraph concludes by affirming WTO members’ right to promote access to medicines for all.

A Turning Points Analysis

The two cases are understood through the lens of an analytical framework. Referred to as an enhanced case study, the analysis identifies critical moments in the process that led to a change in the course of the negotiation. The results provide insight into process dynamics as well as the relationship between process and outcome. They also reveal similarities and dissimilarities between the GATT and WTO processes, which led to different outcomes.

Another contribution of this study is made to theory: The cases provide the first application of the framework to multilateral trade talks. We return to a discussion of these implications in the final section on lessons learned. In this section, we provide definitions of each part of the framework and discuss the technique of process tracing.

As noted above, the turning points framework consists of three parts: precipitants, departures, and consequences (short and long term). A departure is the focal element in a causal analysis of turning points. It is bounded by a prior event or decision, usually close in time, and by a subsequent event that follows immediately. The analyst first identifies departures in the case event chronology. Thus, we begin with a definition of departures.

According to Funk & Wagnalls Standard Dictionary of the English Language (1965), a departure is an act of deviating from a method, course of action, set of ideas, etc. It is also regarded as deviation from a standard, norm or from an established pattern such as ordering curry as a departure from a person’s usual bland diet. With regard to negotiation processes, a departure may be regarded as a non-linear development that indicates a change has occurred during the process. Examples are agreements, major concessions, breakthroughs (such as a

11 re-framing of the issues), or setbacks such as a halt in the talks. They may be sudden or gradual. Based on a turning points analysis of earlier case studies, several common features emerge. These include: a) a change from earlier events or patterns, in varying degrees of suddenness; b) clear and self-evident changes in the process or in relationships between the parties, and c) an action or decision taken usually by one of the parties leading to consequences for both/all of them. These common features suggest another definition: A clear and self-evident change from earlier events or patterns in the form of a decision taken by one or all parties.

Missing from this definition however is impact. The question asked is: Does the decision have evident consequences in terms of moving the negotiation toward or away from agreement? When impact is taken into account, departures are defined as:

A clear and self-evident change from earlier events or patterns in the form of an impactful decision taken by one or all parties.

By recognizing the importance of impact, we must avoid confusion with the third part of the framework, referred to as consequences. This is done by distinguishing between impact and type of impact: The former does not specify direction in terms of positive or negative consequences, the latter specifies direction as escalatory or de-escalatory. Thus, a definition of consequences is:

A clear and self-evident impact of a departure in terms of the direction taken by the negotiation process. The direction includes both immediate (minimum lapsed time since departure) and delayed impacts.

Another challenge for a turning points analysis is that of separating departures from precipitants. These are factors inside or outside of the negotiation that trigger change or departure. Three types of precipitants are procedural (decisions made to change the structure or format of the talks), substantive (new ideas or concepts introduced by one or more of the

12 parties, and external (events that occur outside the talks, including policy and leadership changes as well as third-party interventions). Thus, a decision made to bring experts into deliberations is a procedural precipitant leading to a decision to convene working committees

(a departure). A proposal to re-frame the issues, such as Gorbachev’s proposed de-linking of types of weapons systems in the INF talks, is a substantive precipitant leading to a decision to discuss only tactical weapons (a departure). And, a sudden shift of policy taken by the foreign ministry of one of the negotiating parties is an external precipitant that leads to a decision to suspend the talks (a departure) with short-term escalatory consequences. To satisfy the requirements of a causal analysis, precipitants are those that occur in close proximity to the decision that signals a departure has occurred. These considerations and examples suggest the following definition of a precipitant:

A clear and self-evident event occurring inside or outside the negotiation, causing one or more parties to make a decision that departs from earlier events or patterns.

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These definitions are helpful to the extent that they guide coding of events in a case chronology. Three examples from the GATT rounds illustrate these working definitions of the concepts. In 1986, a decision was made to include the issue of IPR on the GATT agenda.

This was a self-evident change that impacted in a major way on the direction of the negotiations immediately and over the long term. In 1989, India accepted that GATT, rather than WIPO or some other international organization, had authority to consider enforcement of IPR within the Uruguay Round. This decision was prompted by the April 1989 adoption of a declaration endorsing the applicability of GATT principles to IP issues (a precipitant) and led to the engagement of developing countries in examining the condition of IPR

13 enforcement (a consequence). In 1991, the GATT Trade Negotiation Committee chair, Arthur

Dunkel, issued a stock-taking report based in part on a TRIPS understanding achieved between developed and developing countries and then an understanding between key developed countries (precipitant) leading eventually to a Uruguay Round agreement (long- term consequence). These examples of departures illustrate the value of the working definitions. The definitions were used to structure a process tracing analysis of the two case chronologies. (See George & Bennett 2005, for a detailed treatment of process tracing methodologies.)

The process tracing approach is implemented in steps. A first step consisted of developing detailed chronologies from available literature for each case: the GATT Uruguay

Round and the WTO Doha Ministerial. The second step was to identify departures – based on the working definition -- in each of the chronologies. For each departure, a distinction was made between relatively abrupt and more gradual departures. Third, moving forward, the immediate consequence for each departure was identified. This allowed for a judgment of the departure’s impact, which is an important part of the definition. Fourth, looking backward, an attempt was made to identify the proximal event that precipitated the departure. These steps satisfy the conditions for causal analysis – a cluster of three events occurring close to each other in time. A more comprehensive process trace would extend the sequence further back and forward. This was the fifth step in the analysis. Earlier events illuminate the way that the key precipitating event evolved through time. Later events reveal the longer-term consequences of each departure. Thus, the traces are extended in both directions, before and after the immediate precipitants and departures. Sixth, the traces are shown for each case, providing the bases for interpretation of the negotiations through the lens of a turning points analysis. And, finally, the frequency of occurrence for each part of the analysis is

14 summarized followed by a modal trace (the most frequently occurring precipitants, departures, and consequences). We turn next to the process tracing results.

Process Tracing Results

The first step was to develop detailed chronologies of events for each case. A variety of sources were used for the GATT 2 and WTO 3 chronologies. The GATT (Uruguay Round,

1986-1994) chronology consists of 14 pages of events beginning with the 1883 Paris

Convention for the Protection of Industrial Property and concluding with the 1995 Uruguay

Round agreement. The WTO (Doha Declaration at Doha Ministerial) chronology consists of nine pages of events beginning with the 1995 prenegotiation activities and concluding with the adoption of the Declaration on the TRIPS Agreement and Public Health at the Doha

Ministerial in 2001. The full chronologies are available from the authors.

The next step entailed identifying the key events in each case according to the definition of departures discussed in the previous section. We queried the chronologies about events that made a difference in turning the negotiation toward or away from eventual agreement. These events were understood in terms of their impact, defined as a relatively short-term consequence. As discussed above, a departure-consequence pairing was identified before searching for the precipitants. Six impactful events were regarded as departures in TRIPS I; three events were identified as departures in

TRIPS II. Each was a focal point for a series of prior and subsequent events. Referred to as process

2 Case facts derived from: Agreement on Trade-Related Aspects of Intellectual Property Rights (Annex 1C) 1994; Crump 1998; Devereaux, Lawrence, and Watkins 2006; Drahos 1995; Evans 1994; GATT Ministerial Declaration 1986; Orbinski 2001; Sell 2003; Singh 2006; Stewart 1993.

3 Case facts derived from: Agreement on Trade-Related Aspects of Intellectual Property Rights (Annex 1C) 1994; Amorium 2008; Declaration on the TRIPS agreement and public health 2001; Devereaux, Lawrence, and Watkins 2006; Drahos 2007; Ministerial Declaration 2001; Odell and Sell 2006; Sell 2003; WTO News Item (December) 1998; WTO News Item (February) 1999; WTO News Item (March) 2000; WTO News Item (October) 2000; WTO News Item (February) 2001; WTO News Items (April) 2001; WTO News Item (May) 2001; WTO News Items (June) 2001; WTO News Items (September) 2001; WTO News Items (November) 2001; WTO New Item (Undated) 2001; WTO News Item (March) 2002; WTO Reporter (June) 2001.

15 traces, the sequences are described for each case in turn , providing the bases for interpretation of the negotiations through the lens of a turning points analysis. And, finally, the frequency of occurrence for each part of the analysis is summarized followed by a modal trace (the most frequently occurring precipitants, departures, and consequences). We turn next to the process tracing results.

A more comprehensive process trace would extend the sequence further back and forward. This was the fifth step in the analysis. Earlier events illuminate the way that the key precipitating event evolved through time. Later events reveal the longer-term consequences of each departure. Thus, the traces are extended in both directions, before and after the immediate precipitants and departures. Sixth, the traces are shown for each case, providing the bases for interpretation of the negotiations through the lens of a turning points analysis.

And, finally, the frequency of occurrence for each part of the analysis is summarized followed by a modal trace (the most frequently occurring precipitants, departures, and consequences). We turn next to the process tracing results.

TRIPS I (GATT Uruguay Round)

The TRIPS I process traces are shown in Tables 2.1–2.6. The first departure set the stage for including IPR issues in the GATT Uruguay round agenda. It occurred in October 1985 when the USTR Advisory Committee accepted a report prepared by Jacques Gorlin. Such action, taken by the US government, motivated a group of US industrial leaders to establish the

Intellectual Property Committee (IPC), which proceeded to develop a strategy to include IPR issues on the GATT agenda. As shown in Table 2.1, the events unfold from the release of a private-sector report and then acceptance of the report by a US governmental agency to the active pursuit of accomplishing the goal of placing IPR issues on the Uruguay round agenda.

The second departure in September 1986 -- shown in Table 2.2 -- consisted of the official

16 acceptance of IPR as issues to be negotiated within the GATT framework. A few months later (January 1987), IPR issues were situated within a “basket,” as one part of the GATT

Trade Negotiations Committee agenda, confirming that these issues were to be debated and resolved within GATT. Although these departures developed gradually (non-abrupt), their impact was substantial. These decisions framed the debate for years to come: IPR were now defined as legitimate issues of international trade although key developing countries had not yet accepted this new understanding.

Later in 1987, initial positions on IPR were presented by the US, EC and Japanese delegations, as each sought an expansive IPR agenda within GATT. This ambitious agenda motivated the private-sector Trilateral Industrial Group (US, EC and Japan) to develop a detailed consensus document entitled Basic Framework of GATT Provisions on Intellectual

Property. The Framework assisted developed countries to build a detailed consensus position and eventually served as the basis for debate within GATT negotiations. The initial positions taken by developing countries – considered to be a non-abrupt departure – emerged from activities inside and outside the negotiations over the course of a year, starting with a bilateral agreement in 1986 that served as a model for GATT TRIPS (see Table 2.3).

The debate between developed and developing countries over the IPR agenda

(Consequence T+2 in Table 2.3) brought the talks to a standstill until April 1989 in Geneva.

Adoption of a GATT-IPR framework at that meeting was an abrupt departure precipitated by a crisis at the Uruguay round mid-term review a few months earlier in Montreal (Precipitant

T-1 in Table 2.4). Developing countries finally accepted the legitimacy of GATT as a venue to negotiation IPR although India was the last to accept (Consequence T+1 in Table 2.4).

This breakthrough led to a more intense phase of the talks (see Table 2.4).

With the basic IPR framework (agenda) adopted negotiations were organized into a

“Ten-plus-Ten” arrangement that included ten developed countries and ten developing

17 countries (see Table 2.5). Over several months negotiations produced a draft Composite Text for the Brussels Ministerial but this Ministerial ended in an impasse because of US – EC disagreement over issues unrelated to IPR (Precipitant T-2 in Table 2.5). Progress continued in IPR negotiations although at this point IPR issues between developed countries and developing countries were resolved and what remained were issues only relevant to developed countries. Informal IPR negotiations proceed between the US, EC and Japan

(Precipitant T-1 in Table 2.5). Although progress had been achieved in IPR, significant outstanding issues remained and so the chair of the GATT Trade Negotiations Committee produced a stock-taking document in November 1991 that paved the way toward a TRIPS agreement. The final negotiations during December 1991, shown in Table 2.5 as an immediate consequence of the TNC chair’s document, all but wrapped up the TRIPS

“basket” within GATT. These developments were triggered by informal discussions among the major players, considered in the analysis as a procedural precipitant. However, it took two years to resolve the many other outstanding trade issues on the table at GATT. The final agreement, concluded in December 1993, is also the final departure in our analysis. It emerged gradually from procedural decisions made six months earlier as shown in Table 2.6.

An immediate consequence was the conclusion of the Uruguay round followed several months later, in April 1994, by the official signing ceremony.

The GATT process is traced from 1985 to 1994. Six departures define the particular sequences chosen for analysis. These sequences are shortened chronologies pulled from the longer, more detailed chronology of the process. They are summarized by a process trace in which the frequency of types of precipitants, departures, and consequences (across the six sequences) are highlighted. It takes the following form (with proportions of occurrence in parentheses):

GATT TRIPS Process Traces:

Precipitants: External (.47), Procedural (.40), Substantive (.13) -

Departure: Non-abrupt (.67), Abrupt (.33) -

Consequence: De-escalation (.82), Escalatory (.18)

A modal trace (most frequently occurring types) takes the following form:

External precipitants - non-abrupt departures - de-escalatory consequences

This negotiation process trace consists of a near-equal proportion of external and procedural precipitants and primarily non-abrupt departures. However, it is important to recognize the importance of the two abrupt departures in the sequence. Occurring in April

1989 (Table 2.4) and November 1991 (Table 2.5), these departures set the stage for the

TRIPS agreement in December 1991. The first broke a deadlock; the second abrupt departure produced a breakthrough in understanding.

TRIPS II (Doha Declaration at Doha Ministerial)

TRIPS II process traces are shown in Tables 3.1–3.3 and based on events within the newly formed WTO. The first departure came after several years of dissatisfaction regarding the impact of TRIPS on public health although the first departure was abrupt. Upon accepting the role as the new Chair of the WTO Council for TRIPS, Ambassador Boniface Chidyausiku of

Zimbabwe argued that “the WTO could no longer ignore the access to medicines issue, an issue that was being actively debated outside the WTO but not within it” (Odell and Sell

2006: 98). As Chair, Chidyausiku requested a special TRIPS Council session on access to medicines in April 2001. Substantial context established a foundation for this first departure but two specific precipitants could be identified. Around 2001 we find a sharp spike in

19 international media discussion on a connection between patent protection and health.

Linking these two issues together represents a re-framing of IPR and served as a substantive precipitant. During this period Zimbabwe was “elected by consensus” to the Chair of the

WTO Council for TRIPS, which represents a procedural precipitant.

This first departure produced a number of significant consequences. The WTO TRIPS

Council held a Special Session on Access to Medicine based on Ambassador Chidyausiku’s request, in June 2001. At that meeting the African Group (an association of 41 WTO members) plus 16 other developing countries presented the critical proposal: Nothing in the

TRIPS Agreement should prevent WTO members from taking measures to protect public health. This de-escalatory consequence caught the US and its allies off-guard (Escalatory

Consequence). The TRIPS Council agreed to reconvene in July for further discussions (a De-

Escalatory Consequence). See Table 3.1.

TRIPS Council meetings were held in July and September 2001 but it was events in

October that produced the next departure within this negotiation. Stuart Harbinson, representing Hong Kong–China, served as Chair of the WTO General Council and in this role has important responsibilities in establishing the WTO agenda. Days prior to the WTO

Ministerial, in Doha Qatar, Harbinson submits to the Doha Ministerial a single text on TRIPS and health with two options (one option preferred by developing countries and the other by many developed countries). There had been uncertainty that TRIPS and public health would appear together on the Ministerial agenda but this action confirmed that the issue would receive attention from the 146 WTO Members attending the Doha Ministerial. Three precipitants contributed to this non-abrupt departure. The US sought to divide the developing country coalition (DCC) by offering special deals to least developed countries although this substantive precipitant was unsuccessful. Brazil strategically threatened to reopen the entire

Doha agenda if the DCC version was not included as part of the Doha agenda (Substantive

Precipitant), although Brazil had no objections to submission of the US led proposal and the

DCC proposal. Harbinson, as Chair of the WTO Council, sought to secure a compromise between the two sides, but this third substantive precipitant was unsuccessful.

As a consequence, WTO Director General Mike Moore declares that the TRIPS and health issue could be a deal-breaker for a new trade round (Escalatory Consequence) so

Moore appoints Luis Ernesto Derbez of Mexico to mediate a settlement between parties representing the US led proposal and the DCC proposal on the TRIPS/health issue (De-

Escalatory Consequence). See Table 3.2

The third and final departure brought this negotiation to a close, as the Declaration on the TRIPS Agreement and Public Health (Doha Declaration) was adopted at the Doha

Ministerial, which is a non-abrupt Departure. In arriving at this departure the US government abandoned the US pharmaceutical industry, as the US did not want to appear to be against access to medicine in front of such a large international spotlight (Substantive Precipitant).

The final agreement was concluded by the US and Brazil, each representing the two sides

(Substantive Precipitant).

This was not the end, however, as Paragraph 6 of the Doha Declaration, pertaining to

WTO Members with insufficient pharmaceutical manufacturing capacity, required further negotiations (Escalatory Consequence) followed by the WTO General Council adopting rules on this matter in October 2003 (De-escalatory Consequence). See Table 3.3.

The three process traces are summarized in terms of the frequency of types of precipitants, departures, and consequence. It takes the following form (with proportions of occurrence in parentheses):

WTO TRIPS Process Traces:

Precipitants: External (.14), Procedural (.14 ), Substantive (.72) -

Departure: Non-abrupt (.67), Abrupt (.33) -

Consequence: De-escalation (.57), Escalatory (.43)

A modal trace (most frequently occurring types) takes the following form:

Substantive precipitants - non-abrupt departures - de-escalatory consequences

The modal trace highlights the preponderance of substantive precipitants in TRIPS II.

A smaller difference occurs between the non-abrupt vs. abrupt departures and de-escalatory vs. escalatory consequences.

Discussion

The enhanced case analysis reported in this article contributes to an understanding of the two multilateral trade cases and to the analytical framework. Both types of contributions are discussed in this section, first from the standpoint of the cases and then in terms of the turning points framework.

A comparative analysis of the two cases illustrates the utility of the turning points analysis, as our attention is drawn to understanding similarities and differences and more importantly, the underlying factors that appear to contribute to these dynamics. Such analysis can provide further insight into negotiation process and outcome. This section begins by examining TRIPS I and TRIPS II precipitants, departures and consequences.

Precipitants

Forces outside the negotiation played a significant role in creating departures in TRIPS I but not TRIPS II. No single or simple explanation can be developed in gaining understanding about this important difference between cases. The intrinsic nature of the issue under negotiation, the degree of negotiator expertise in unchartered territory, and the fundamental nature of the international organization that served as the venue, and partially controlled negotiation dynamics are each important factors for understanding differences between the role of external precipitants in TRIPS I and TRIPS II.

As mentioned in the introduction to this article, intellectual property includes patents across major economic sectors and copyright and trademarks across all literate sectors of society. Identifying and then defining the relevance of trade in this setting is a monumental task that existed in unchartered territory prior to TRIPS I. This is the task that confronted

TRIPS I negotiations and so it is not surprising that TRIPS I negotiators required outside expertise. On the other hand, TRIPS II was narrowly focused on patents within the pharmaceutical industry only and the specific relationship between intellectual property rights and public health. The essential debate within TRIPS II was to reverse TRIPS I decisions by prioritize public health over IPR. This issue was clearly understood by proponents of TRIPS

II before Zimbabwe assumed the WTO TRIPS Council Chair. TRIPS I proponents were dependent on outside expertise initially because of significant issue complexity. A lack of issue complexity decreased dependence on external expertise in TRIPS II.

Unlike GATT which appeared to be relatively porous to the outside in TRIPS I, the

WTO was a fairly insulated organization. This may be the difference between an international organization conducting a global trade negotiation – which purposefully seeks to engage various sectors of society – and an international organization just trying to conducts its day- to-day business without significant outside interference. In its early years the WTO was

23 accused of being insular and has since made important efforts to engage civil society

(Charnovitz 2004). Nevertheless, TRIPS II occurred during WTO developmental years.

Moreover, it did not help matters that the WTO TRIPS Council was dominated by developed countries. A substantial voice in opposition to these interests only appeared when the

Council chairmanship rotated to Zimbabwe. A review of the 1999 – 2001 WTO TRIPS

Council agenda juxtaposed with the rising alarm expressed within the international media over IP and public health added legitimacy when the time came to frame IPR–Trade in a public health context.

Departures

Re-framing an issue, imposing that issue on the other side and then forcing the other side to operate within this new frame represents a substantial source of negotiation power (Crump 2005) but this power is not easily gained. The turning points analysis sheds light on the way this process unfolded punctuated by key events referred to as departures. Observe the substantial work conducted in each negotiation to conceptualise the problem so that it held the potential of legitimacy (see Table 2.1,

Table 3.1), attach this re-framed issue to a negotiation agenda (see Tables 2.2 and 2.3, and Table 3.2), and then impose this new frame on the other side (see Table 2.4 and Table 3.3). Once achieved the give-and-take of negotiation can begin leading toward or away from agreements (see Tables 2.5 and

2.6 and Table 3.3). The analyses make evident continuing attempts by many parties to re-frame the issues, or accept or reject a re-framed issue, as discussed in the paragraphs to follow.

Fundamental to each negotiation within TRIPS I and II are efforts to re-frame a significant issue as a means of gaining control over a preferred outcome. In TRIPS I developed countries succeeded to re-frame intellectual property in a trade context. In TRIPS

II developing countries and NGOs succeeded to re-frame this prior negotiation in a public health context. Conceptualising how to re-frame so that this new frame has inherent creditability or legitimacy, attaching this re-framed issue to a negotiation agenda, imposing

24 this new frame on the other side or getting the opposition to accept the legitimacy of this re- framed issue, and hence the legitimacy of the negotiation agenda, appears in each negotiation under review. This comparative analysis of a turning points framework highlights a predictable five-part pattern when re-framing is a central negotiation strategy:

Conceptualising Attaching Imposing or Negotiation Negotiation Re-framed Issue Re-framed Gaining Give-and-Take Endgame with Strategic Issue to Acceptance and Outcome Intent Negotiation of Re-framed Agenda Issue on/by Key Opponents

Negotiations over specific positions, compromises and agreement (the give-and-take of negotiation) cannot really begin until the negotiating parties move beyond the third phase.

We see this with great clarity in Table 2.4 where a GATT-IPR negotiation framework was adopted in April 1989 (two years and seven months after developed countries slipped IPR onto the GATT agenda). Still it was another five months before the last major party (India) submitted to the IPR frame imposed by developed countries.

We find a similar pattern in TRIPS II although compressed in a much shorter period of time. TRIPS II shifted or expanded IPR–trade policy by including public health issues and by establishing a hierarchy between the two concepts so that public health, under certain conditions, held greater authority than the rights of intellectual property holders. This exercise in re-framing was only achieved through massive NGO activity and the formal authority of a WTO Committee Chair who presented creditable arguments (conceptualising re-framed issues) to place the issue on a WTO Committee agenda. Still, developed countries were unconvinced that this issue should be addressed in this forum, in this manner and at this time, and continued to fight the legitimacy of this agenda item to the very end. The give-and- take of negotiation could only begin when the US and other developed countries recognised the legitimacy of this re-framed issue. Only after the US finally yielded could Brazil and the

US broker the arrangement that became the Declaration on the TRIPS Agreement and Public

Health (2001).

Consequences

It is interesting to note the different patterns of escalatory and de-escalatory consequences that resulted from each set of departures in TRIPS I and II. TRIPS I was like a slow moving train that methodically travelled down a track. Initially, only the concept designers could see where this train was going but as it gained momentum others could begin to see the train, its direction and apparent destination. By this time it was too late although an attempt was made to stop the process. De-escalatory consequences were most commonly observed after each

TRIPS I departure except once. Mid-way into these negotiations two escalatory consequences are observed after the third departure (see Table 2.3). At this point developed countries have moved beyond quietly inserting their IPR agenda into the GATT Uruguay negotiation and are now outlining their initial position in formally held GATT meetings. Furthermore, industrial groups based in developed countries began publishing detailed demands that would eventually be adopted by their government. The full realisation by developing countries of developed country aspirations and its inconsistency with the way IP had traditionally been framed produced a long and sustained deadlock that lasted over two years. This was the only escalatory consequence within TRIPS I. Otherwise, after each turning point, we observe de- escalatory consequences, as the designers of this negotiation process (governments and industrial associations from developed countries) were so focused and in control that de- escalation and further movement toward (rather than away from) agreement was the typical consequence after each departure (see all TRIPS I Tables except Table 2.3). This observation speaks to the fundamental nature of the coalition that managed this negotiation.

TRIPS II, on the other hand, was conducted by a network including developing countries, NGO’s, international organizations, the international media (especially the

Northern hemisphere media) and several enlightened developed countries. Such a coalition, with diverse interests and objectives, would have great difficulty agreeing on a common goal and strategy especially in a field as complicated as intellectual property. However, key leaders boiled this complexity down to its essential features: That nothing in the TRIPS

Agreement shall prevent national governments from taking action to protect public health.

Nevertheless, this collection of organizations and associations depended heavily on the Internet, the media and a network of human contacts to provide direction and momentum.

Needless to say, this operation was not the well-oiled machine that pushed TRIPS I to a successful conclusion. As such, we observe de-escalatory and escalatory (movement toward and movement away from agreement) consequence after each departure in TRIPS II.

Features of coalition dynamics deserve greater scholarly attention within a turning points framework. Associating with others combines power and may even create synergies that can provide control at the negotiation table. As powerful as the US government is in many international forums, for example, the USTR knew that IPR would not become part of the GATT agenda without the cooperation of the EU and Japan. Coming together provides some control over negotiation process but now this control must be shared with others. Thus, sharing can result in a loss of unilateral control over negotiation process as coalition members disagree over specific goals and methods. A focus on escalation or de-escalation following a departure, when a coalition is a primary actor within a negotiation, may focus our attention on a coalition’s ability to effectively manage the balance between control gained and lost through association.

The Turning Points Framework

The analyses of the two multilateral trade cases also illuminate the value of the turning points framework for understanding negotiation dynamics. They isolated the critical events and decisions that moved each process toward or away from agreements. These events – referred to as precipitants -- included new ideas (attempts to secure a compromise between Brazil and the US at Doha), altered procedures (establishing the ten-plus-ten IPR forum at GATT), and external events (US-Korea agreement concluded during GATT). Each of the events was shown to trigger departures that moved the process forward (new texts proposed de-escalated tensions) or backward (splits between developing and developed countries escalated tensions). By isolating a short list of critical events in a long stream of conversations inside and outside the negotiation, the approach satisfies the goal of parsimony, which contributes to the development of theories of impasse resolution. It also facilitates comparative analysis.

Three theoretical contributions are evident in the discussion above. One is the role played by re-framing issues in order to encourage bargaining and problem solving: this includes both re-conceptualizing the issues and gaining acceptance for the new frames.

Another is the relationship between re-framing and legitimacy: a stage-like process that moves toward accepting the legitimacy of the new frame may be needed to resolve impasses.

A third contribution is the conflict management role played by coalitions. Functions performed by coalitions, particularly in complex multilateral negotiations, include de- escalating tensions, reducing the polarizing divisions (in these cases, between developing and developed countries), and orienting the process toward eventual agreements. This combination of substantive and procedural processes adds to the framework. Re-framing may be regarded as a substantive precipitant, perceived legitimacy as a consequence of achieving the new frame (a departure), and the managing coalitions are the glue that connects

28 precipitants to departures to consequences. They were identified through the lens of the turning points framework. They also contribute to analyses of other types of cases.

It is instructive to compare the TRIPS case results with those obtained from earlier analyses of bilateral trade cases (Druckman 2001). The modal process trace for the earlier cases show a preponderance of substantive precipitants, abrupt departures, and de-escalatory consequences. This pattern is more similar to that found for TRIPS II than for TRIPS I, particularly with regard to precipitants. One possible reason is that TRIPS II was the shorter process, more similar to the timeframes of the bilateral cases. Another is the attempt made by coalition leaders to reduce the complexity of TRIPS II issues to their essential features, which created a process akin to the smaller number of salient issues in bilateral talks. For these reasons perhaps the negotiation parties focus more on the substance of the talks than on procedures. Together with the shorter time period, the work done by managing coalitions to reduce the complexity of TRIPS II reduced the impact of external events or interventions on the process. The longer period of TRIPS I provided more opportunities for external events to exert influence. A difference between the bilateral and multilateral cases on types of departures (more abrupt departures in the bilateral cases) may reflect the difference between announced deadlines (in many of the bilateral cases) and no official deadlines in the TRIPS processes. However, this is one of several conjectures that remain to be investigated with further cases in trade and other issue domains.

The turning points framework has been shown to contribute insights into the complex negotiation processes surrounding issues of intellectual property. The case analyses, in turn, contributed to the framework. This is consistent with the objectives of an enhanced case study methodology, where theoretical frameworks are imposed on the details of cases

(Druckman, 2005, chapter 6): this is a two-way street with contributions made to the cases and to the theory. By adding a comparative dimension to the analysis, the framework is

29 shown to highlight similarities and differences between cases in the same and different issue areas.

The turning points analyses also have implications for practice in at least three ways.

One is that effectiveness is increased when coalitions manage the tension between inclusion and control. By controlling events, they precipitate departures that lead to agreements.

Another is that effectiveness depends, at least in part, on reframing issues or their configuration. Our analyses shed insight into how this was done at GATT and the Doha

Ministerial, thereby providing lessons for negotiators in other multilateral fora. A third implication comes from the idea of issue complexity. More complex issues are resolved by external interventions rather than by procedural or substantive breakthroughs by the negotiating parties. Knowing this, multilateral negotiators can seek outside assistance, including mediation, to deal with sticky issues. Each of these implications suggests strategies for improving the effectiveness of negotiation.

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Table 1: Turning Points Framework (Process Traces) ______

Precipitants (t -1) Departure (t) Consequences (t + 1) Consequences (t + n)

Types: Types: Types: Types: External Abrupt Escalatory Escalatory Substantive Non-abrupt De-escalatory De-escalatory Procedural ______

Trade Related Aspects of Intellectual Property Rights (TRIPS)

TRIPS I: GATT Uruguay Round 1986 – 1994

Table 2.1 – USTR adopts a strategy on trade and intellectual property rights

October 1985 United States Trade Representative (USTR) Task Force on Intellectual Property Rights (IPR) recommends Gorlin report to USTR (Procedural Precipitant: T-1)

October 1985 USTR Advisory Committee for Trade Negotiations embraces Gorlin report and begins working to place IPR on GATT agenda (non-abrupt Departure )

March US industrial leaders establish Intellectual Property Committee (IPC) (De-Escalatory 1986 Consequence: T+1)

March IPC adopts strategy to place IPR on GATT agenda (De-Escalatory Consequence: T+2) 1986

Table 2.2 – Intellectual property rights included on the GATT Uruguay agenda

March IPC adopts GATT-IPR strategy (External Precipitant: T-3) 1986 June-July The Union of Industrial and Employers’ Confederation of Europe (UNICE) and the 1986 Japan Federation of Economic Organizations (Keidanren) eventually persuaded by the IPC to pursue an IPR agenda in GATT (External Precipitant: T-2)

August 1986 UNICE and Keidanren persuade their respective government to support GATT–IPR agenda (External Precipitant: T-1)

September Trade related aspect of intellectual property rights adopted as a part of the GATT 1986 Uruguay round agenda (non-abrupt Departure )

January 1987 IPR included in Group of Negotiations of Goods (GNG) - one part of the GATT Trade Negotiations Committee (TNC) (De-Escalatory Consequence: T+1)

Table 2.3 – Developed countries present IPR position within GATT

July US – Korea Intellectual Property Rights negotiations concluded – agreement used as 1986 a model for GATT TRIPS (External Precipitant: T-3) ---

January 1987 IPR included in Group of Negotiations of Goods (GNG) – one part of the GATT Trade Negotiation Committee (TNC) (Procedural Precipitant: T-2)

November IPC, UNICE and Keidanren (Trilateral Industrial Group) establish initial consensus 1987 (External Precipitant T-1)

October- US and then the EC and Japan present initial IPR positions within GATT each November seeking a broad IPR agenda (non-abrupt Departure ) 1987

June The Trilateral Industrial Group adopts detailed consensus document (Basic 1988 Framework of GATT Provisions on Intellectual Property) (Escalatory Consequence T+1)

Jan 1987 Developed and developing countries (North-South) argue over GATT IPR agenda to parameters for two years (Escalatory Consequence T + 2) April 1989

Table 2.4 – Developing countries accept legitimacy of GATT jurisdiction over IPR

1986 – 1991 GATT–IPR negotiations exist in North-South context

August US Omnibus Trade Competitiveness Act includes “Special 301” provision that 1988 supports a strategy allowing the US to pursue unilateral IP protection (External Precipitant: T-2)

December Uruguay Round mid-term review in Montreal drifts into deadlock because of IPR 1988 and other trade issues (Substantive Precipitant: T-1)

April Deadlock broken at GATT Trade Negotiations Committee meeting in Geneva plus 1989 GATT–IPR negotiation framework adopted (abrupt Departure )

September India accepts international enforcement of IPR within GATT (De-Escalatory 1989 Consequence: T+1)

Post-Sept. IPR negotiations enter a more intense phase (De-Escalatory Consequence T+2) 1989

Table 2.5 – Negotiators adopt basic framework leading to agreement

April Ten-plus-Ten (10 developed countries and 10 developing countries) IPR forum 1990 established within TNC (Procedural Precipitant: T-3)

1990 Ten-plus-Ten forum produces draft Composite Text for Brussels Ministerial but (December 1990) meeting ends in impasse because of US–EC disagreement over agricultural subsidies (Procedural Precipitant: T-2) --- >

1991 Informal IPR negotiations between US, EC and Japan (Procedural Precipitant T-1)

November TNC Chair distributes “Progress on Work in Negotiating Groups: Stock-Taking” 1991 (abrupt Departure )

December Final IPR negotiations produce basic understanding for TRIPS agreement (De- 1991 Escalatory Consequence T+1)

Table 2.6 – TRIPS agreement finalised

December TRIPS agreement basically concluded but GATT remained unresolved because of 1991 other trade issues (Substantive Precipitant: T-2)

July Comprehensive GATT Work Schedule adopted (Procedural Precipitant T-1) 1993 December GATT agreement on market access, agriculture, services, etc. (abrupt Departure ) 1993

December GATT Uruguay agreement concluded (De-escalatory Consequence T+1) 1993 April Agreement finalised and signed at Marrakesh Ministerial (De-escalatory 1994 Consequence T+2)

January TRIPS enters into force (De-Escalatory Consequence T+3) 1995

* A straight arrow designates a causal relationship between sequential events; a broken arrow designates a non-causal relationship between sequential events.

Trade Related Aspects of Intellectual Property Rights (TRIPS)

TRIPS II: Doha Declaration at Doha Ministerial, 2001

Table 3.1 – Public health included on WTO TRIPS Council agenda

Early Sharp spike in international media discussion on a connection between patent 2001 protection and health (External Precipitant T-2) ---

April Zimbabwe elected by consensus to Chair the WTO Council for TRIPS 2001 (Procedural Precipitant T-1)

April New Chair of the WTO Council for TRIPS presents creditable argument to 2001 include access to medicine on the Council agenda and calls for a special session on this agenda item (Abrupt Departure )

June June TRIPS Council Special Session on Access to Medicine held with the 2001 African Group (plus 16 other developing countries) proposing that nothing in the TRIPs Agreement should prevent WTO Members from taking measure to protect public health (De-Escalatory Consequence T+1)

June The US and its allies are caught off-guard (Escalatory Consequence T+2) 2001 June The TRIPS Council agreed to reconvene in July for further dis cussions (De - 2001 Escalatory Consequence T+3)

Table 3.2 – TRIPS and health included on Doha Ministerial agenda

October USTR unsuccessfully attempts to divide the DCC by offering special deals to 2001 least developed countries (Substantive Precipitant T-3) ---

October Brazil does not object to submission of both the US led proposal and the 2001 DDC proposal to the Doha Ministerial but threatens to reopen the entire Doha agenda if the DCC version is not included (Substantive Precipitant T-2) ---

October WTO Council Chair is unsuccessful in securing a compromise between the 2001 two sides (Substantive Precipitant T-1)

October WTO Council Chair submits to the Doha Ministerial a single text on TRIPS 2001 and health with two options (non-Abrupt Departure )

November WTO Director General declares that the TRIPS and health issue could be the 2001 deal-breaker for a new trade round at start of the Doha Ministerial (Escalatory Consequence T+1) ---

November Representative of Mexico appointed to mediate settlement on the 2001 TRIPS/health issue (De-Escalatory Consequence T+2)

Table 3.3 – Doha Declaration, 2001

November US government abandons pharmaceutical industry, as the US does not want 2001 to appear to be against access to medicine (Substantive Precipitant T-2)

November US and Brazil, representing the two sides, reached agreement on the final text 2001 (Substantive Precipitant T-1)

November Declaration on the TRIPS Agreement and Public Health (Doha Declaration) 2001 adopted at Doha Ministerial (non-Abrupt Departure )

2002-2003 Paragraph 6 of the Doha Declaration pertaining to WTO Members with insufficient pharmaceutical manufacturing capacity required clarification and further negotiation (which countries should be allowed to import which products – for what diseases – from which possible exporters and under what TRIPS flexibilities) (Escalatory Consequence T+1)

October WTO General Council adopts six pages of rules for Doha Declaration 2003 Paragraph 6 (De-Escalatory Consequence T+2)