The International Law Commission defines conflict as a situation ‘where two norms that are both valid and applicable point to incompatible decisions so that a choice must be made between them’.³ The focus to ascertain the existence of a conflict rests therefore on the compatibility or incompatibility of outcomes and not on singular formal criteria, like, for example, the question of a formal denomination of the subject matter covered.⁴ This approach to conflicts and conflict resolution is, in other words, one of de facto relationships between rules.⁵ The relevant de facto or effects-based relationship can be established by an overlap of obligations ratione materiae, ratione personae or ratione temporis.⁶

Consequently, there can be no conflict where obligations are not related de facto, because the subjects differ substantially or where the addressees or the point in time for which they are in force do not coincide. By contrast, a ‘spaghetti bowl’ setting, where relationships between parties and agreements are dense and complex, thus harbours an intense and multi-directional potential for conflict in terms of the parties involved, substance of aims and obligations or timeline. Furthermore, in order to be deemed conflicting in legal terms,⁷ the contradictory outcomes warranted by different provisions must be binding.⁸

Looking at the Asia-Pacific ‘spaghetti bowl’ in particular, the TRIPS-plus FTAs in that bowl are related to one another and to the TRIPS Agreement ratione materiae, as they all essentially aim to stipulate obligations for IP protection and enforcement. The precise aim of those FTAs is to deviate from TRIPS by laying down different, typically higher, standards. Since the FTAs (like the TRIPS Agreement) are typically concluded for an indefinite or at least a reasonably long period of time, the permanency accorded to the obligations contained in them creates an overlap ratione temporis. Finally, the overlap ratione personae results from the (ubiquitous) situation where a given country is party to TRIPS as well as to one or several FTAs. Of these three dimensions, the question as to the extent to which any overlap ratione materiae exists is clearly the contentious issue for determining the presence of a conflict of norms and obligations in the spaghetti bowl. A careful delineation of the substance and scope of the IP-related obligations laid down in TRIPS vis-à-vis those laid down in the FTAs (or between the FTAs) concluded by a given country is consequently of the essence in this regard.

Conflict scenarios in the spaghetti bowl include the TRIPS Agreement being complemented by a later TRIPS-plus FTA, the TRIPS Agreement prohibiting a provision laid down in a later FTA, and the TRIPS Agreement prohibiting the exercise of a right granted by a later FTA.⁹ For example, conflict may arise where parties to an FTA would agree to exempt favourable concessions in their agreement from the stipulation in TRIPS that ‘any advantage, favour, privilege or immunity granted by a Member to the nationals of any other country shall be accorded immediately and unconditionally to the nationals of all other Members’¹⁰ (the ‘most favoured nation’ (MFN) clause). Such a unilateral exemption is not foreseen in the TRIPS Agreement. Similarly, TRIPS would prohibit the exercise of an optional right granted to one or both of the parties to an FTA to suspend the application of the MFN clause. As far as the relationship between FTAs is concerned, potential conflict arises from the multitude of players and strategies involved, so that the provisions and standards laid down in the agreements that a given country concludes with its various trade partners may well differ significantly from one another. Scenarios of ‘spaghetti bowl’ conflicts include an earlier FTA prohibiting a provision contained in a later FTA or the earlier FTA prohibiting the exercise of a right granted through a later FTA.

Even in a complex ‘spaghetti bowl’ setting however, the starting point for assessing the conflict potential for FTA provisions is the international law principle that parties must not be presumed to have willingly entered into incompatible agreements (principle of presumption against conflict).¹¹ A harmonious interpretation of the various obligations that a given party has entered into in the spaghetti bowl is therefore to be attempted as far as possible.

Another important conflict-reducing factor is the practice of laying down simple minimum standards rather than an inflexible minimum–maximum obligation in multilateral (universal) agreements.¹² Agreement on minimum standards only fosters compromise at the negotiations, albeit at a risk that the minimums agreed to by the parties are but low. Where states parties bound by low minimum standards agree to adhere to stricter standards vis-à-vis selected trade partners in an FTA, the stricter provisions can normally not contravene the universal obligations on minimum standards.

The most important universal agreement for IP protection incorporating minimum standards only is the TRIPS Agreement. Across the board of the substantive IP rights and the relevant enforcement provisions in the TRIPS Agreement, it accords parties discretion to ‘implement in their law more extensive protection than is required by this Agreement, provided that such protection does not contravene the provisions of this Agreement’.¹³ For TRIPS therefore, any increase in the protection standard for substantive rights or enforcement provisions would normally be permissible.¹⁴ Incompatibilities may only arise in the rare instance where the provisions concerned are reciprocal and mutually incompatible, so that the stricter standard is always necessarily incompatible with another minimum standard. For example, provisions adding to the procedural rights of the rightholder in enforcement litigation may exceptionally encroach upon minimum rights of defence accorded to the other party.¹⁵ Notwithstanding a closer examination of this question that is not undertaken here, it seems that prima facie the TRIPS Agreement would not also authorize ‘more extensive protection’¹⁶ for rightholders diminishing explicitly laid down rights of defence. Another example of conflict, again irrelevant in practice, would be a contravention of an FTA with the general provisions and basic principles of the TRIPS Agreement, for example, exemptions or suspensions from the principles of national treatment (NT)¹⁷ or from the MFN clause¹⁸ beyond those foreseen in TRIPS.

A second technique that reduces conflicts between agreements and that is widely used in universal international IP protection agreements in particular is the ‘favourability rule’, under which the agreement or provisions which are more favourable for the protection of rightholders prevail.¹⁹ Examples here include the Berne Convention²⁰ (standards more favourable to authors prevail), the Universal Copyright Convention²¹ (higher standards of protection for literary and artistic works prevail) and the 1961 Rome Convention²² (more extensive rights or protection for performers, producers of phonograms or broadcasting organizations prevails).

As a consequence, the potential for normative conflict between the substantive provisions of a universal IP protection agreement like TRIPS in particular and IP provisions laid down in a ‘spaghetti bowl’ FTA is to be considered negligible in practice. Conflicts would only arise in the rare case of changes in the level of protection for mutually incompatible reciprocal provisions.

As regards the conflict potential between the obligations entered into by the same party in various FTAs, a similar picture emerges as in the case of conflict between FTAs and universal agreements: the conflict potential is generally low. This is mainly due to three characteristics.

First of all, it was shown (above) that conflict presupposes a partial overlap of the obligations concerned. Between FTAs however, there can usually be no mutual incompatibility of obligations because the parties to the agreements will typically differ: the obligations laid down in an FTA between states ‘A’ and ‘B’ do not usually affect the obligations laid down between ‘A’ and ‘C’, because all obligations in international agreements apply inter partes only.²³ Mutual incompatibility of the provisions of several FTAs therefore presupposes that, exceptionally, at least some parties to those (for example, multilateral) FTAs are identical or that there is, again exceptionally, some other relationship of incompatibility although the parties are not identical (for example, B exercises a right laid down in the FTA between A and B that de facto contravenes a right accorded to C in the FTA between A and C). In the IP field however, for the other two reasons discussed immediately below, such situations of de facto incompatibility are even more unlikely to occur than in other areas of international law.

For once, the TRIPS-plus FTAs concluded in the ‘spaghetti bowl’ all pursue identical or similar goals, which is to increase standards and to attain a generally high level of IP protection—at least higher than what is laid down in TRIPS. In this general TRIPS-plus climate, FTAs will usually not forbid parties to go beyond a given level of protection so that, in other words, again some form of minimum standards approach applies. Accordingly, conflicts could arise only where, exceptionally, such a minimum standards approach does not apply. Where, as will be common, an FTA pursues additional aims next to a simple establishment of TRIPS-plus protection, those other aims might work as a counter-balance and effectively stipulate maximum levels or ceilings of protection. For example as regards the EU’s Economic Partnership Agreements (EPAs) examined elsewhere in this volume,²⁴ sustainable development forms the presiding objective for those agreements in addition to their TRIPS-plus concerns. If the relevant other objective effectively introduces a maximum level of protection (and, as was just shown, if some of the parties to the FTAs are exceptionally identical) an FTA–FTA conflict might exist. There is, however, not much likelihood of such a situation arising.

In addition, by virtue of its universal character, the TRIPS Agreement still forms the underlying legal framework for the ‘spaghetti bowl’. In practice, FTAs do not seek explicit conflict with the TRIPS Agreement. TRIPS provisions designed to determine the behaviour of parties on a universal basis pro futuro therefore codetermine the effects of obligations laid down subsequently to TRIPS in ‘spaghetti bowl’ FTAs. Codetermination of legal effects of FTAs concluded by TRIPS parties has, in particular, the object and effect of conflict avoidance but, of course, also of furthering the aims of the TRIPS Agreement itself. Two TRIPS provisions of this kind are particularly pertinent in this regard: the NT principle and the MFN clause.

The MFN clause²⁵ contains an unconditional²⁶ obligation for states parties to the TRIPS Agreement to ‘immediately’ extend ‘any advantage, favour, privilege or immunity granted by a Member to the nationals of any other country’ in relation to the protection of IP ‘to the nationals of all other Members’ of TRIPS.²⁷

The MFN obligation has two implications. First, the highest standard of IP protection accorded by a state in any of the FTAs it has concluded applies vis-à-vis all of its trading partners. Second, the MFN rule avoids an emergence of conflict between the stipulations made in various FTAs as, essentially, less favourable IP protection provisions are simply overruled²⁸ and become obsolete. The state party concerned is therefore always bound by only one (that is, the highest) standard and does not need to apply or sort out the relationships between the various different standards laid down in all of its ‘spaghetti bowl’ FTAs.

A similar effect to that of the universal MFN clause is achieved through the NT principle²⁹ in TRIPS. Under the NT principle, TRIPS parties are obliged to ‘accord to the nationals of other Members treatment no less favourable than that [of] its own nationals’³⁰ in terms of IP protection. The NT principle is therefore the bottom-line to be complied with first—a state must accord all TRIPS members at least the domestic standard of IP protection and not treat them less favourably. Against that background, the MFN clause assumes practical relevance only where a TRIPS party accords the nationals of another party a treatment that is even more favourable than its domestic standards.³¹ If there is (as seems to be the case for EU IP protection, for example) no more favourable protection standard laid down internationally than is laid down domestically, only the domestic standard applies.

The NT principle, therefore, again works to ensure that the highest applicable standard of protection is extended to all other TRIPS members. In doing so, the NT principle may, in particular, overrule lesser standards of protection laid down in an FTA, so that the FTA standard becomes irrelevant for a party which already applies more favourable standards for its own nationals. Furthermore, the NT principle is also a tool for avoidance of conflict among a multitude of standards existing in the ‘spaghetti bowl’, as—at least for incoming (foreign) rightholders—only one level of protection applies.

In sum therefore, the MFN clause and the NT principle fulfil similar and complementary roles in (1) ensuring universal application of the highest standard applied by a given party, and (2) avoiding conflict via an immediate harmonization of applicable standards at the level of that highest standard.

For illustration, let us imagine a setting where the EU concludes TRIPS-plus FTAs with two separate countries ‘A’ and ‘B’ at lower (L_t) and higher (H_t) TRIPS-plus levels respectively. All parties are also parties to the TRIPS Agreement. The lower (L_t) and higher (H_t) TRIPS-plus standards are set above the previous domestic levels in A and B respectively. In this setting, the combined application of the MFN clause and the NT principle yields the following picture. Presuming that the EU has laid down domestic standards that are higher or equal to the standards of its TRIPS-plus FTAs with A(L_t) and B(H_t), rightholders from A(L_t) or B(H_t) will always see that standard applied when seeking protection in the EU, without there being room or need for an application of the respective FTA. Rightholders from the EU seeking protection in A(L_t) and B(H_t) will be able to rely on the H_t-standard in B(H_t) and on the L_t-standard in A(L_t), unless A or B apply a higher standard in an FTA with another trading partner than the EU. If so, that higher standard applies also for EU rightholders seeking protection in A or B by virtue of the MFN clause. The clearest emergence of the MFN-effect, however, is in relation to rightholders from A(L_t) seeking protection in B(H_t). Even where A and B have no FTA in place between themselves or where they do have an FTA in place that is less favourable than the EU-B(H_t)-FTA, rightholders from A(L_t) can rely on the TRIPS-plus standard that B has accorded the EU in the EU-B(H_t)-FTA by virtue of TRIPS’ MFN clause.

In spite of a multitude of ‘same aim’ TRIPS-plus FTAs in the Asia-Pacific ‘spaghetti bowl’, a closer look reveals that we are in fact dealing with related norms setting the framework for a more or less one coherent IP protection and enforcement standard. This is due to the fact that universal agreements relating to international IP protection make widespread recourse to minimum standards and to favourability rules, which authorize subsequent FTAs as long as the obligations contained therein do not fall behind the universal standards. In addition, international law applies a principle of presumption against conflict, under which a harmonious interpretation of seemingly incompatible obligations is to be attempted as far as possible.³² For TRIPS-plus FTAs (such as those of the Asia-Pacific spaghetti bowl), conflicts with the universal framework of the TRIPS Agreement and other international IP protection agreements are practically excluded. At the same time, normative conflict between FTAs entered into by the same party is not likely either, due to lack of an overlap of obligations ratione personae. In addition, FTAs too typically do not stipulate maximum protection levels, but minimum protection obligations. A conflict between FTAs thus presupposes the unlikely situation of a concurrence of an introduction of a maximum level of protection and an identity of parties to the FTAs concerned.³³