Before we examine a few of the IP aspects of the agreements we would like to clarify the choice of the Asia-Pacific region as the geographical focus for this chapter and this book. There are multiple interpretations of the term ‘Asia-Pacific’ and the countries that it is supposed to encompass. In popular parlance, people tend to associate it with high growth economies in Asia and use it increasingly independently of their actual geographic location on the Pacific Rim.

Although this terminological debate is usually carried out by social and political scientists rather than lawyers, the British IP lawyer Jeremy Phillips in an editorial for the Journal of Intellectual Property Law and Practice a few years ago pointed out that the ‘Asia-Pacific’ was actually a meaningless term, spanning vast and different areas and cultures that had little in common, except perhaps the interest of politicians in bringing them closer for reasons of trade.⁵ He suggested that it was time to ditch the Asia-Pacific concept. Political scientists, on the other hand, have pointed out that all regional groups and associations are constructs and they can be constructed in different ways depending on whether the issue at stake is trade policy, defence and security or culture and language. In other words, regional constructs in the social sciences or in law depend on the particular question that one wants to analyse and the particular purpose that one wants to achieve.⁶ In discussing the ‘Indo-Pacific region’ as the newest addition to the vocabulary of international relations experts, Rory Medcalf, expressed it as follows:

Changes in cartographic terms can have tangible effects. Material realities are what they are, but their meaning in terms of strategic interests and intentions is never self-explanatory. Those meanings, in turn expressed through symbols such as language and map-making, have a way of recursively shaping material realities and political choices.⁷

In our view, ‘the Asia-Pacific’ remains useful here for a number of reasons. First, it moves away from a Eurocentric view that takes as a departure point the further development in law or otherwise among and within former colonial powers. To an increasing extent, that view can no longer be maintained. A former British colony such as Australia after WWII partially re-oriented itself towards the United States and is increasingly engaged with its Asian neighbours. Equally, it is increasingly no longer correct to see both the law and administration in former French, British, Dutch, Portuguese, Spanish or US colonies in South or Southeast Asia simply as continuation or further development of their former colonial systems. In some cases, the break with the colonial past in such countries has been quite abrupt, caused by war and revolution, while in other nations it has been gradual. The entire region, however, displays a move towards closer cooperation in culture, politics and law, which is sustained by increasing trade, cooperation in science and education, and quite simply by the personal ties of people, who as tourists or migrant workers are moving within this region with an ease that was still difficult to imagine two decades ago.

Nevertheless, Phillips is correct in pointing out that the new and large regional construct of the ‘Asia-Pacific’ can be a problematic concept. This is particularly true in view of the fact that it is used in different forms (with a varying number of countries representing an inconsistent geographical and social construct) as reference point for the collection of statistical information that in turn becomes the basis for policy decisions. Depending on how one defines the concept, it includes Pacific Asia (that is Asian countries actually facing the Pacific)⁸ or the countries of the Asia-Pacific Economic Cooperation (APEC), which currently links larger economies of Asia and the South Pacific on the Western rim of the Pacific with North and South American countries on the Eastern rim of the Pacific. Alternatively, it can mean Asia and the Pacific, which could mean a geographical scope stretching from Turkey to the Easter Islands. A quick look at the definitions and scope used by various United Nations organizations illustrates the multiple meanings that are being used. The widest meaning of Asia and the Pacific appears in the United Nations Economic and Social Commission for Asia and the Pacific.⁹ It there covers countries in the Near and Middle East, the East, Southeast, South and Central Asia, Pacific islands as well as the United States across the Pacific and, presumably for historical reasons,¹⁰ the United Kingdom. In the Asian Development Bank,¹¹ on the other hand, the United States and Canada are non-regional members and the Asia-Pacific includes East, Southeast, South and Central Asia, the Pacific islands as well as Australia and New Zealand. The same scope is being used by FAO¹² and UNESCO.¹³ The IMF includes all of these countries, with the exception of those in Central Asia.¹⁴ The UNDP includes Central Asia, but not Australia and New Zealand.¹⁵ Finally, the World Bank and UNICEF prefer to separate East Asia (including Southeast Asia) and the Pacific from South Asia and include Central, Near and Middle Eastern countries in a group of Europe, the Middle East and North Africa.¹⁶

Garnaut and Drysdale point to the history of Asia-Pacific regionalism and how it was thought of in the 1960s as including the advanced economies of the region (United States, Canada, Japan, Australia and New Zealand) before broadening to the developing ‘market economies’ of the Western Pacific, in particular in East and Southeast Asia.¹⁷ The term has recently been used increasingly loosely, including in particular also developments in neighbouring South Asian countries such as India.¹⁸ This latter use of the concept also appears in one of the regional FTAs linking China and India, the Asia Pacific Trade Agreement (APTA). It includes China and Korea from East Asia, as well as India, Bangladesh and Sri Lanka from South Asia, and Laos, the smallest economy in ASEAN. Originally concluded in 1975 as an initiative of the United Nations Economic and Social Commission for Asia and the Pacific (ESCAP) as the Bangkok Agreement, it is in fact the oldest preferential trade agreement in the region. It includes recently concluded Framework Agreements on trade in services, investment and trade facilitation.¹⁹

With 34 agreements in effect, signed, under negotiation or proposed, India comes second only to Singapore in FTA activities. Many of these link India to the region. In fact, India initiated a ‘look East’ policy in 1991 in the wake of the country’s domestic reforms.²⁰ It has long been keen to join APEC, but a moratorium on new membership has so far prevented this from happening.²¹ Since ‘substantial and broad-based economic linkages with existing APEC members’ are among the pre-conditions for membership,²² India can now point to agreements with APEC members Korea, Singapore, Japan, Malaysia, Thailand and with ASEAN as a group as well as to the ongoing negotiations with Australia, Canada, Indonesia, New Zealand and to being part of the Regional Comprehensive Economic Partnership negotiations. It is important also to note the recent employment of the concept of the ‘Indo-Pacific region’ by academics and politicians in India, Japan, Indonesia and Australia.²³

The focus of this book, however, is on the countries of East and Southeast Asia, Australia and New Zealand. Developments in India are taken into account, but not covered in detail as Indian FTAs for the most part are still modest in their intellectual property content. In fact, of 17 agreements in effect and/or signed by India, only the agreements with Japan, Korea, Singapore, Thailand and ASEAN mention intellectual property at all.²⁴ With the exception of the Japan–Republic of India Comprehensive Economic Partnership Agreement, the other four agreements aim at cooperation only and/or confirm the respective rights and obligations under TRIPS. The Japan–India agreement has provisions largely confirming TRIPS and Paris Convention requirements with some additional content on streamlining of procedural matters, hearings regarding refusals to grant a patent, restrictions of the scope of claims and guidelines for well-known trade marks.²⁵

These countries form the East Asia Summit Meeting, commonly referred to as ASEAN plus 6 (that is all the countries of ASEAN plus Japan, China, Korea, India, Australia and New Zealand). The same group of countries is now also negotiating the Regional Comprehensive Economic Partnership Agreement (RCEP).²⁶ This agreement, negotiated under the leadership of ASEAN, includes China, but not the United States.²⁷ The United States, on the other hand, is pushing for the conclusion of the Trans-Pacific Partnership Agreement (TPP). If agreed, the TPP will connect the NAFTA countries United States, Canada and Mexico with Chile and Peru in South America; Japan, Vietnam, Malaysia, Singapore and Brunei in East and Southeast Asia; and Australia and New Zealand in Australasia. While the RCEP would include least developed ASEAN members and presumably be modest in its intellectual property content, leaked drafts of the US proposal for a TPP intellectual property chapter and of the advanced intellectual property chapter with negotiating positions show that the TPP may bring very substantial commitments to strengthen intellectual property protection.²⁸

The current proliferation of FTAs is very intense within the RCEP group as well as beyond it and the ‘spaghetti bowl’ has increasingly many Asian mee and ramen in it.²⁹ While the focus of this book is on the Western Rim of the Pacific and immediate neighbours, we would also like to show in this chapter how clusters in this part of Asia relate to clusters elsewhere in the Asia Pacific in the different broader understandings of the terms that we mentioned earlier.

While Singapore is ‘leading the pack’ in terms of FTA initiatives in Asia and all of the countries studied in this volume are in the top 15 in this regard, they are followed, perhaps rather unexpectedly, by some smaller countries such as Kazakhstan (16 FTAs), Laos (14), Myanmar (13), Cambodia (12), Tajikistan (12), Uzbekistan (12), Georgia (11) and the Kyrgyz Republic (11). The reason for this relative prominence of some of the smaller economies is that many of these smaller players are part of regional groupings of mostly neighbouring countries that are concluding agreements with the larger economies. Thus, a least developed, small country such as Laos is in the top 16 with regard to the total number of FTA initiatives in Asia, but the country has only a single bilateral agreement and that is, not surprisingly, with its neighbour Thailand.⁵⁶ As mentioned above, it is also the only Southeast Asian member of the Asia-Pacific Trade Agreement which stretches across South, Southeast and East Asia. All of the other Laotian agreements are concluded or being negotiated within the context of ASEAN. This same reason also explains the 13 agreements of Myanmar, for a long time an international pariah state, but a member of ASEAN and as such involved in the collective ASEAN negotiations. In the case of Myanmar, the only exception is its participation in the Bay of Bengal Initiative for Multi-Sectoral Technical and Economic Cooperation (BIMSTEC) Free Trade Area, for which a Framework Agreement has been signed. The Bay of Bengal Initiative of neighbouring South and Southeast Asian countries around the Bay of Bengal was set up in 1997 by Bangladesh, India, Sri Lanka and Thailand and later joined by Myanmar, Bhutan and Nepal.⁵⁷ The participating countries signed a Framework Agreement for a BIMSTEC Free Trade Area in 2004. This is one of a number of regional initiatives to establish stronger trade links and open up regions of neighbouring countries that had few such links in the recent past due to political differences, the Cold War or hostilities between the countries. Another very significant initiative would be a trade corridor to be established by the Bangladesh–China–India–Myanmar Forum for Regional Cooperation (BCIM). This grouping was set up in 1999 originally as the Kunming Initiative. The establishment of a trade corridor was recently endorsed by Indian Prime Minister Manmohan Singh and the Chinese Premier Li Keqiang.⁵⁸

FTAs negotiated by ASEAN and other regional groupings in Asia have to take into account the interests of countries at very different levels of development, including least developed countries. As a consequence, they tend to be low in intellectual property content and, at most, focus on cooperation and collaboration in this field. Where they go beyond affirmations of TRIPS and the establishment of collaborative mechanisms, as in the ASEAN agreement with Australia and New Zealand (AANZFTA), they could theoretically become binding and establish higher standards for the least developed country members in a group, even though such countries are not currently bound by the TRIPS agreement. The reason is that the transition period for least developed countries to introduce TRIPS conforming intellectual property standards was extended in 2013 until 2021.⁵⁹ Expressly excluded from this extension were, however, Articles 3, 4 and 5 of the TRIPS Agreement, which include the principles of national treatment and most-favoured nation treatment.⁶⁰ Higher intellectual property standards can, therefore, become obligatory for least developed countries via such regional agreements, and it is important that the transitional periods of TRIPS are reaffirmed, as is indeed the case in AANZFTA.⁶¹

An examination of the aggregate of plurilateral, regional and bilateral negotiations shows regional clusters of FTAs stretching from West Asia and the Arab Peninsula to the Pacific. These clusters are usually formed by a regional FTA binding the regional neighbours, followed by collective negotiations as well as individual country negotiations with other countries or groupings. In Australia’s immediate neighbourhood and also generally in Asia, ASEAN is the most important regional association and also the most important ‘building block’ for increasingly larger agreements with further regional members. Together with the European Free Trade Association (EFTA), it has in fact the second highest number of FTA initiatives after the European Union and ahead of the Gulf Cooperation Council with nine such initiatives.⁶² ASEAN began its life as a security organization formed as a defence against communist neighbours in 1967.⁶³ It was increasingly transformed into a regional organization and finally, since the end of the Cold War, into an economic free trade area with the conclusion of the ASEAN Free Trade Area (AFTA). All ten members of ASEAN are part of AFTA. ASEAN has achieved considerable tariff reductions since the conclusion of AFTA in 1992 and it envisages transforming itself into a single market as the ASEAN Economic Community in 2015.⁶⁴

ASEAN has long been a building block for regional forums such as the Asia-Pacific Economic Cooperation (APEC). More recently, it has become an important building block for the larger regional free trade agreement initiatives.⁶⁵ Most of the industrialized and larger developing country economies negotiate with ASEAN, and ASEAN forms the core of three important larger regional FTAs: ASEAN+CER (whereby the CER refers to the Closer Economic Relations Trade Agreement between Australia and New Zealand),⁶⁶ the East Asia Free Trade Area (more commonly known as ASEAN+3, that is ASEAN plus Japan, China and Korea) and now the Regional Comprehensive Economic Partnership Agreement (more commonly known for a while as ASEAN+6, that is ASEAN plus Japan, China, Korea, India, Australia and New Zealand). The latter group links ASEAN with important regional neighbours that have observer status at ASEAN meetings. These regional arrangements could be represented diagrammatically as a growing number of overlapping or concentric circles starting with ASEAN itself, via ASEAN+3 and ASEAN+6, through to larger cooperation forums such as APEC.⁶⁷

We can find a similar regional cluster of overlapping membership but also diverse patterns of participation in the Pacific, where the smallest agreement is that created by the so-called Melanesian Spearhead Group (MSG)—an intergovernmental group involving five countries (Fiji, Papua New Guinea, the Solomon Islands, Vanuatu, and New Caledonia).⁶⁸ The MSG Trade Agreement was signed by PNG, the Solomon Islands and Vanuatu in 1993, with Fiji becoming a member in 1998. In addition, there is the Pacific Island Countries Trade Agreement (PICTA)—made up exclusively of Pacific island states (or ‘Forum Island Countries’ (FICs)) with a number of such states implementing the Trade in Goods since January 2007 (and others progressing their participation) and nine states having signed the Trade in Services Protocol in 2012 (though neither Australia nor New Zealand participated in either the PICTA TIG or TIS, although they were founding members of the Forum).⁶⁹ There is further the South Pacific Regional Trade and Economic Cooperation Agreement (SPARTECA), which includes Australia and New Zealand as well as the FICs, which was signed 14 July 1980 and entered into force the following year,⁷⁰ as well as the Pacific ACP-EC Economic Partnership Agreement currently under negotiation. As explained in the chapter by T. Jaeger, this volume, the ACP group comprises mostly former colonies of EU member states. The EU started negotiations with the different groups of states included in the ACP between 2003 and 2007. They led to an agreement with the CARIFORUM states in 2008, while others, including the EPA with Pacific island states, continue to be negotiated.⁷¹ Both Papua New Guinea and Fiji have meanwhile signed an interim EPA with the EU (in December and July 2011 respectively) and the EU is indicating that the membership of this interim EPA could be widened.⁷² Finally, negotiations for the Pacific Agreement on Closer Economic Relations (PACER) Plus were launched in 2009 and are aiming at a Free Trade and Development Agreement between Pacific Islands countries and Australia and New Zealand.⁷³

Other regional clusters are to be found on the Arabian peninsula (the Gulf Cooperation Council),⁷⁴ in Eurasia [Commonwealth of Independent States (CIS FTA)⁷⁵; Common Economic Space (CES)⁷⁶; Eurasian Economic Community Customs Union (EurAsEC)⁷⁷; Georgia, Ukraine, Azerbaijan, Moldova Free Trade Agreement (GUAM FTA)]⁷⁸; and South Asia (South Asian Free Trade Area (SAFTA),⁷⁹ Bay of Bengal Initiative).⁸⁰ FTA initiatives can also stretch several regions based on strategic or security considerations or on culture and/or religion. The Shanghai Cooperation Organization (SCO) was founded in 2001 by China, Russia, Kazakhstan, Kyrgyzstan, Tajikistan and Uzbekistan and grew out of security cooperation during the 1990s.⁸¹ A Free Trade Agreement for the group has been proposed and is under consultation and study since 2003.⁸² Signed, but not yet in effect is the Economic Cooperation Organization Trade Agreement (ECOTA). The Economic Cooperation Organization was founded by Iran, Pakistan and Turkey in 1985 as successor organization of the Regional Cooperation for Development (RCD). It expanded to a membership of ten countries after admitting Afghanistan, Azerbaijan, Kyrgyzstan, Tajikistan, Turkmenistan and Uzbekistan in 1992.⁸³ Five of these members (Afghanistan, Iran, Pakistan, Tajikistan and Turkey) signed ECOTA in 2003.⁸⁴ Finally, there is a 2004 Framework Agreement for the Trade Preferential System of the Organization of the Islamic Conference (TPS-OIC) that includes 36 countries,⁸⁵ and the Preferential Tariff Arrangement of the Group of Eight Developing Countries (PTA-D8), signed in 2006 and bringing together from Asia and Africa eight countries with large Muslim populations.⁸⁶

A potential vehicle for the emergence of an FTA with membership drawn from APEC has been the Trans-Pacific Strategic Economic Partnership Agreement (TPSEP), initially formed in 2006 by Singapore, Brunei, New Zealand and Chile.⁸⁷ Subsequent to the APEC summit in Peru, membership of the Agreement was widened to include Peru, Australia and the United States. As it gained momentum, the TPSEP has now evolved into the Trans-Pacific Partnership.⁸⁸

It is evident from the analysis above that there are a number of different FTA clusters and a plethora of individual FTAs. The question that arises from this picture is whether in fact there is an erosion of the ‘Most Favoured Nation’ (MFN) principle in international trade.⁸⁹ The danger that lies behind the erosion of the MFN principle and the multilateral commitment to non-discrimination is that trade distortion might result from the new architecture of international law. This view itself makes the assumption that where international trade agreements institute a particular set of rules, they also create a type of ‘architecture’ or an ‘infrastructure’ that actors within the legal system must abide by. However, there have been a number of studies that have in fact indicated that the take-up rate for regional FTAs by businesses in Asia remains low.⁹⁰

Notwithstanding the current utilization rate by businesses within the Asian region of FTAs there is a view that all is not lost in terms of trade liberalization. As noted above, the proliferation of FTAs is driven in part by the stalling of trade liberalization in multilateral forums such as the WTO.⁹¹ The concerns that flow from this process are that there will be a race to the bottom in terms of RTAs and FTAs and the capture of this process by special interests. In part these concerns are valid. There has been criticism that TRIPS reflected the interests of industrial groups in the developed North that lobbied for favourable rules.⁹² Nonetheless, this has escalated after TRIPS with industry simultaneously lobbying for stronger rules and seeking ways in which to enforce rights within the region.⁹³

Advanced industrialized economies, such as the United States, have been seeking to negotiate TRIP-plus FTAs.⁹⁴ The United States is also a driving force behind the negotiation of the Trans-Pacific Partnership Agreement (TPP). By late 2012, parties to the TPP include Australia, the United States, Singapore, Vietnam, Chile, Canada, Malaysia, New Zealand, Mexico, Brunei Darussalam, and Peru. Japan joined the negotiations in 2013.⁹⁵ Other countries such as South Korea,⁹⁶ Thailand,⁹⁷ Indonesia⁹⁸ and the Philippines⁹⁹ have expressed some interest in joining, but are still watching from the sidelines.

These types of regional clusters would result in several states agreeing to TRIPS-plus standards. Accordingly, the absence of intellectual property measures in many inter-Asian FTAs would effectively be circumvented by obligations in bilateral FTAs with developed countries or regional cluster RTAs which are themselves driven by developed countries. Accordingly, for example, that the Singapore–India FTA has a bare commitment to existing intellectual property obligations would have little significance if both Singapore and India were in the TPP.

After getting this initial impression of the size and extent of the ‘spaghetti bowl’ or perhaps rather its overlapping circles and clusters, the remainder of this chapter will be devoted to the question of what this means for the post-TRIPS intellectual property landscape. If we survey the intellectual property content of the various agreements, we can first of all distinguish between agreements with no or very low commitments to intellectual property and those with specific intellectual property chapters, some of which are very detailed. In the most detailed agreements many of these substantive provisions go beyond the WTO TRIPS Agreement, a development which has come to be referred to as TRIPS plus.¹⁰⁰ Among the agreements with no or low commitment to intellectual property, we find those that do not mention intellectual property, but rather stress general exceptions in accordance with Article XX GATT. An example is the Free Trade Agreement between India and Sri Lanka of 1998, which refers to the general exceptions provided in Articles XX and XXI of the GATT, allowing for measures a party considers necessary for the protection of its national security, public morals, human, animal or plant life and health and articles of artistic, historic and archaeological value.¹⁰¹ The Commonwealth of Independent States FTA merely refers to Article XX GATT¹⁰² and the Eurasian Economic Community Customs Union authorises the parties to take measures to prevent the misuse of a dominant position by one or several business entities in order to hinder, among other things, use of unfair competition methods.¹⁰³

Equally at this bottom end of IP content is a large number of agreements which contain a single permissive provision, again modelled on the general exceptions provision of Article XX GATT, stating that the agreement shall not preclude the adoption or enforcement of measures necessary for the protection of intellectual property rights (mentioned here are usually patents, trade marks and copyrights) or the prevention of unfair, deceptive or misleading and deceptive practices, provided that such measures are not used as a means of arbitrary or unjustifiable discrimination or as a disguised restriction on trade. The precise wording differs, but such a provision is to be found in regional agreements between developing countries, as in the Pacific Island Countries Trade Agreement (PICTA),¹⁰⁴ Such a provision can also be found, however, in early agreements between developed nations as in the Australia–New Zealand Closer Economic Relations Trade Agreement of 1983,¹⁰⁵ and between developed nations and Pacific island states, as in the Agreement on Trade and Commercial Relations between Australia and Papua New Guinea of 1991 (PATCRA II)¹⁰⁶ and in the South Pacific Regional Trade and Economic Cooperation Agreement.¹⁰⁷

Interestingly, the ASEAN Economic Community Blueprint contains only very vague promises on intellectual property rights. While intellectual property is identified as a priority area in B3 (paragraphs 43–45) of the Blueprint, little more than the implementation of the ASEAN IPR Action Plan 2004–2010 is envisaged.¹⁰⁸