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Journal article 832 views 151 downloads

Technology Transfer and the TRIPS: Interpreting High and Low Consensus Norms

Arwel Davies Orcid Logo

Legal Issues of Economic Integration, Volume: 47, Issue: 2, Pages: 179 - 214

Swansea University Author: Arwel Davies Orcid Logo

Abstract

China’s rules and practices in relation to technology transfer have been of long-standing concern to its trading partners. These concerns are most strongly evident in the United States Trade Representative’s Section 301 Report which foreshadowed the imposition of substantial increased tariffs on Chi...

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Published in: Legal Issues of Economic Integration
Published: 2020
Online Access: https://kluwerlawonline.com/journalarticle/Legal+Issues+of+Economic+Integration/47.2/LEIE2020008
URI: https://cronfa.swan.ac.uk/Record/cronfa53687
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spelling 2020-08-06T14:55:43.2100844 v2 53687 2020-02-28 Technology Transfer and the TRIPS: Interpreting High and Low Consensus Norms 69291f4bd2f8b4edde5b8c336057ee44 0000-0001-9115-9022 Arwel Davies Arwel Davies true false 2020-02-28 LAWD China’s rules and practices in relation to technology transfer have been of long-standing concern to its trading partners. These concerns are most strongly evident in the United States Trade Representative’s Section 301 Report which foreshadowed the imposition of substantial increased tariffs on Chinese goods; a move which was quickly mirrored by China. This article subjects some of these concerns to legal scrutiny. Particular attention is given to China’s treatment of grantback clauses in technology transfer contracts which speak to the ownership of improvements made to licensed technology. China’s outgoing and recently revised rules are evaluated under two questions. The first is whether China’s rules are discriminatory contrary to the TRIPS national treatment obligation. The second is the extent to which states are free under the TRIPS to interfere with freedom of contract in technology transfer. The article identifies a shift as between the two questions from high consensus, to low consensus norms. While the prohibition on discrimination must be strictly interpreted and applied, other TRIPS provisions which touch upon the control of anti-competitive practices in technology licensing, do not remotely reflect a stable international consensus. Interpretations of these provisions should therefore seek to accommodate different approaches, rather than presume that they reflect and prioritize one approach to the exclusion of others. Journal Article Legal Issues of Economic Integration 47 2 179 214 technology transfer; technology licensing; grantback clauses; TRIPS; national treatment 1 5 2020 2020-05-01 https://kluwerlawonline.com/journalarticle/Legal+Issues+of+Economic+Integration/47.2/LEIE2020008 COLLEGE NANME Law COLLEGE CODE LAWD Swansea University 2020-08-06T14:55:43.2100844 2020-02-28T16:02:11.7913346 Arwel Davies 0000-0001-9115-9022 1 53687__16742__f5fee447c12e4480b9796e332671ab9a.pdf 53687.pdf 2020-03-02T14:45:18.6321107 Output 377151 application/pdf Accepted Manuscript true 2020-11-01T00:00:00.0000000 true eng
title Technology Transfer and the TRIPS: Interpreting High and Low Consensus Norms
spellingShingle Technology Transfer and the TRIPS: Interpreting High and Low Consensus Norms
Arwel Davies
title_short Technology Transfer and the TRIPS: Interpreting High and Low Consensus Norms
title_full Technology Transfer and the TRIPS: Interpreting High and Low Consensus Norms
title_fullStr Technology Transfer and the TRIPS: Interpreting High and Low Consensus Norms
title_full_unstemmed Technology Transfer and the TRIPS: Interpreting High and Low Consensus Norms
title_sort Technology Transfer and the TRIPS: Interpreting High and Low Consensus Norms
author_id_str_mv 69291f4bd2f8b4edde5b8c336057ee44
author_id_fullname_str_mv 69291f4bd2f8b4edde5b8c336057ee44_***_Arwel Davies
author Arwel Davies
author2 Arwel Davies
format Journal article
container_title Legal Issues of Economic Integration
container_volume 47
container_issue 2
container_start_page 179
publishDate 2020
institution Swansea University
url https://kluwerlawonline.com/journalarticle/Legal+Issues+of+Economic+Integration/47.2/LEIE2020008
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description China’s rules and practices in relation to technology transfer have been of long-standing concern to its trading partners. These concerns are most strongly evident in the United States Trade Representative’s Section 301 Report which foreshadowed the imposition of substantial increased tariffs on Chinese goods; a move which was quickly mirrored by China. This article subjects some of these concerns to legal scrutiny. Particular attention is given to China’s treatment of grantback clauses in technology transfer contracts which speak to the ownership of improvements made to licensed technology. China’s outgoing and recently revised rules are evaluated under two questions. The first is whether China’s rules are discriminatory contrary to the TRIPS national treatment obligation. The second is the extent to which states are free under the TRIPS to interfere with freedom of contract in technology transfer. The article identifies a shift as between the two questions from high consensus, to low consensus norms. While the prohibition on discrimination must be strictly interpreted and applied, other TRIPS provisions which touch upon the control of anti-competitive practices in technology licensing, do not remotely reflect a stable international consensus. Interpretations of these provisions should therefore seek to accommodate different approaches, rather than presume that they reflect and prioritize one approach to the exclusion of others.
published_date 2020-05-01T04:06:46Z
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score 11.012678

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