TRIPS-Plus Treaty Terms: Dealing with Coercion

Abstract

Bilateral Free Trade Agreements (FTAs) between a strong state and a weak state containing TRIPS-plus terms are often criticized as unfair or exploitative and serving the self-interest of a strong state at the expense of the interests of a weak state. This paper is interested in how it might be decided within a legal framework whether TRIPS-plus terms are unfair or exploitative. An implication underlying the criticisms is that TRIPS-plus terms are obtained through coercion or undue influence, or unfair exploitation of the strong party’s dominant position.This paper imagines an idealized situation in which the Vienna Convention on the Law of Treaties is amended in line with domestic contract law provisions so as to void treaty provisions that are obtained by coercion and unfair exploitation of a party's dominant position. It is then speculated as to whether such a reformed legal position would influence a change in party behaviors to bring about "fairer" outcomes.