Regulatory Innovation and the Institutional Design of the TRIPS Agreement

Abstract

This contribution seeks to provide an answer to the question how much regulatory innovation TRIPS allows. It starts from the premise that TRIPS fosters innovation-and actually legal regimes should also profit from the benefits of an innovative structure. This, however, clashes with traditional concepts of legal certainty. The benefits outweigh the costs of a less certain, more open legal regime. The debate on regulatory competition pays some attention to this. The authors thus analyse the TRIPS Agreement with specific focus on the regulatory power and pressure exerted by rules in TRIPS. For this endeavour, they apply an institutional perspective and turn to regulatory techniques used in TRIPS. Regarding the regulation of intellectual property in TRIPS, different mechanisms can be distinguished that have a different impact for the member states. To make this plain, the authors `` code{''} the different instruments used in the Agreement with numbers attaching more extreme numbers to rules that have a high intensity of regulation. In a second step, the authors analyse the meta-structure of TRIPS to find out how open it is for adaption. Several different approaches towards TRIPS are included. In both instances, the authors point to the possibilities of change. A shift towards a more innovation-friendly, more open, more flexible regulatory regime would make TRIPS a ``learning treaty{''}.