ELU PANDEO

While the long-standing dilemma of access and motivation for innovation and finding an equilibrium point have always been subject to debate and discussion, the introduction of the TRIPS Agreement and its implementation following the conclusion of the Uruguay Round have changed the existing balance in favor of innovation as a major concession to the developed countries. The legal provisions obliging WTO Members to set certain strict minimum standards and to increase their current regime of intellectual property protection, significantly affected the level of their access to patented goods and services such as technologies and medicines and consequently the development process of the least-developed and developing countries was put in danger; the process which relied heavily on the easy access to the protected goods and services. The launch of a new round of negotiation required the involvement of all WTO Members in the Negotiation Round and the developing countries looked at this possibility as an opportunity to

398 Gerhart, "Slow Transformations: The Wto as a Distributive Organization.", p.1075.

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address the unbalanced situation more in favor of the developing and least-developed countries. Developed countries agreed to present certain reinterpretations and roll-backs of previous commitments made in the Uruguay Round as a concession to the developing and least-developed countries to provide them with incentives to participate in the negotiation round.

The Doha Round was structured in a manner which ensured addressing and discussing a considerable part of the demands of developing countries and least-developed WTO Members in order to bring them to the negotiating table. In fact, the Doha Round was launched with the target of speeding the development in lesser developed countries and looked at stopping the asymmetry of economic opportunities in favor of certain powerful and developed Members of the WTO.

Naming the 2001 Doha Round of negotiations as the Development Round, it presented the development approach to international trade and the belief that

“international trade can play a major role in the promotion of economic development and the alleviation of poverty”.³⁹⁹ However to motivate the marginalized Members of the WTO to take part and follow a new round of negotiations, it presented several economic concessions with a view of giving some guarantees that the asymmetry created by the GATT Rounds of Negotiations especially the Uruguay Round would be stopped and removed; these concessions not only included new interpretations of the existing commitments and legal provisions but also in some cases a roll back of certain previous commitments mainly in the TRIPS Agreement.

However, the concessions made in favor of the developing countries in Doha appeared to be more of a type of good gesture to decrease the external pressure on the developing and least-developed countries rather than a real contribution to their problems. Certain concessions in access to medicines provided only a temporary solution for access to necessary medicines in epidemics and others such as capacity building and technical assistance provided a mere framework to make the developing and least-developed countries capable of implementing WTO obligations which actually provided more support to the free trade approach

399 Doha Ministerial Declaration, supra note 1, para 2.

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rather than the development-oriented policies. Other vague concessions mainly in technology transfer, even though they seem fine in theory, still contain significant obstacles in achieving the goals and have been made only to entice the low-income countries to participate in the negotiation round. However, these concessions, even though they were made to make the WTO's bicycle move forward, reflect a major shift from the traditional theory of free trade which was the dominant approach in pre-Doha WTO and GATT to a new approach in which free trade should also care about the development of the low-income and lesser developed Members of the WTO.⁴⁰⁰

The dominant approach in the multilateral trade forum since its inception in GATT and the WTO was the traditional pareto-efficiency based free trade approach. However, the Doha Round’s decisions opened the door for non-trade concerns and presented the concept of wealth creation for all WTO Members and the notion of development in the sense that in a totally free competition model, the process of wealth would be shaped in a totally advantageous manner in favor of developed and powerful members of the trade forum. The Doha Round’s importance was because for the first time the developed countries accepted the theoretical concept of deviating from certain traditional free trade principles in order to integrate other economies of the low-income countries in to the global economy and to use international trade as an instrument for fostering development in the lesser-developed countries and alleviating poverty.

In fact the Doha Declaration by recognizing the major role of international trade in the development process of the WTO Members, and providing the possibility of rolling back from established commitments under the free trade umbrella, prepared the necessary theoretical legitimacy for the non-trade and developmental concerns to shape the process of decision-making in the WTO. However, a comprehensive view toward development as a primary step toward just distribution policies requires that the legal provisions and the structure of the WTO Agreement be designed in a manner which fosters and facilitates the process of development for the lesser-developed countries rather than some

400 Wilkinson, "The Wto in Hong Kong: What It Really Means for the Doha Development Agenda."

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nominal concessions which only have a minor impact on the development of these countries.

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3. Move toward the Distribution-Based