Jean-Frédéric Morin

Consensus-seeking, distrust and rhetorical entrapment: The WTO decision on access to medicines

While the WTO secretariat, key delegations, several NGOs, and industry publicly present the 30 August 2003 WTO Decision as an attempt to reconcile intellectual property with access to medicines, our research shows otherwise. We draw on qualitative analyses of 54 interviews and a lexicometric analysis of press releases to show that their enthusiastic public statements contrast deeply with their internal, cynical beliefs. Most of these actors not only consider the WTO Decision to be fundamentally flawed but claim to have known this prior to its adoption. We argue that a procedural norm of consensus-seeking impeded traditional bargaining over this sensitive issue and that distrust among participants hindered truth-seeking deliberation. Caught between strategic and communicative actions, state and non-state actors found themselves trapped in their own rhetoric of reconciling intellectual property with access to medicines. They realized that the appearance of a solution, rather than a functional solution, provided the only realistic outcome to a fruitless and publicly damaging continuation of debate. From a theoretical perspective, this case study sheds a new light on the gray zone between rational choice theory and constructivism, where both discourse and strategies matter. From an empirical perspective, it illustrates the risk of seeking consensus within international regimes when the procedural norm of consensus coexists with a high level of distrust.

Paradigm shift in the global IP regime: The agency of academics

ABSTRACT The global intellectual property (IP) regime is in the midst of a paradigm shift in favour of greater access to protected work. Current explanations of this paradigm shift emphasize the agency of transnational advocacy networks, but ignore the role of academics. Scholars interested in global IP politics have failed to engage in reflexive thinking. Building on the results from a survey of 1679 IP experts, this article argues that a community of academics successfully broke the policy monopoly of practitioners over IP expertise. They instilled some scepticism concerning the social and economic impacts of IP among their students as well as in the broader community of IP experts. They also provided expert knowledge that was widely amplified by non-governmental organizations (NGOs) and some intergovernmental organizations, acting as echo chambers to reach national decision makers. By making these claims, this article illustrates how epistemic communities actively collaborate with other transnational networks, rather than competing with them, and how they can promote a paradigm change by generating, rather than reducing, uncertainty.

Policy Coherency and Regime Complexes: The Case of Genetic Resources

This study argues that ‘regime complexes’ and ‘policy coherence’ are two faces of the same integrative process. The development of regime complexes co-evolves with the pressures on decision makers to coordinate their policies in various issue-areas. Conceptually, we introduce a typology of policy coherency (erratic, strategic, functionalistic, and systemic) according to its procedural and substantive components. Empirically, by triangulating quantitative and qualitative data, we use this typology for the case of the genetic resources’ regime complex to illustrate the links between regime complexes and policy coherency. Our results suggest that a coherent policymaking process favours integrated regime complexes, while greater exposure to a regime complex increases the pressure to have a coherent policymaking. This study fills a gap in the literature on regime complexes by providing a micro-macro model linking structure to agency.

An Integrated Model of Legal Transplantation: The Diffusion of Intellectual Property Law in Developing Countries†

Why do some countries adopt exogenous rules into their domestic law when those rules contravene their specific interests? We draw on the policy-diffusion literature to identify four causal mechanisms that we hypothesize explain the adoption of such rules. While existing literature treats these mechanisms as independent, we argue that each works in combination with the others to facilitate legal transplantation. While one mechanism�coercion�tends to initiate the transplantation process, it fades over time and three others largely supplant it: contractualization, socialization, and regulatory competition. These mechanisms act in a mutually supportive manner. We test our claims via a quantitative analysis of legal transplants in the field of intellectual property (IP) that incorporates an original index of IP protection in 121 developing countries over more than 14 years. This article concludes with a plea for theoretical eclecticism, acknowledging multicausality and context-conditionality. Any comprehensive explanation of legal transplantation must include the identification of mutual reinforcement between causal mechanisms, rather than simply rank their relative contributions.

Struggling over meanings: Discourses on the EU’s international presence

The first section of this article arranges the four theoretical approaches and methods presented in the special issues – namely interpretative constructivism, post-structuralism, discursive institutionalism and critical discourse analysis – along two dimensions: (a) the role of discourse in the constitution of the world, depending on whether approaches perceive social structure as being constitutive of or constituted by discourse; and (b) interpretation of the weight of material and ideational elements in discourses. This model helps to make sense of the profound theoretical diversity that characterises analytical approaches to international relations discourse. The second section tackles the question of ‘who does the speaking’. It identifies the different voices that converge in the EU’s international choir and problematises the discursive environment that forges international discourses through the theoretical lenses of selected approaches. In the last section, the contributions to this special issue are presented.

Overlapping and Evolving European Discourses on Market Liberalization

Research Highlights and Abstract This introduction to the special section on European liberal discourses Presents key assumptions discussed in the collection of articles, such as liberalism as a discourse and the conceptualization of discourses as networks. Offers an original typology of liberal discourses regarding State intervention. Introduces two models linking discursive interactions to discursive change, analogous to the operational code approach and to schema theory in cognitive science. Presents original data on DG Trade discourse, to illustrate simultaneous change and continuity. This introduction to the special section on European liberal discourses discusses three themes covered by all contributions: (i) the co-existence of several market liberal discourses in the European public sphere; (ii) interactions among these various discourses; (iii) and discursive changes resulting from these interactions.

What Can Best Explain the Prevalence of Bilateralism in the Investment Regime

This article seeks to explain a key characteristic of the investment regime. Indeed, a closer look at the regime’s treaties clearly reveals a “lateralism paradox.” On the one hand, most of the attempts to conclude a comprehensive multilateral agreement on the protection of foreign investment have failed (Schrijver 2001: 21–25; Young and Tavares 2004: 2). Although some multilateral investment instruments exist, none of these provides compulsory rules for the liberalization and protection of investment as does Chapter 11 of the North American Free Trade Agreement (NAFTA), effective since 1994. This is not because there have been no attempts. The investment chapter of the 1948 Havana Charter, the 1959 AbsShawcross Convention on Investments Abroad, the 1967 Organization for Economic Cooperation and Development (OECD) Convention on the Protection of Foreign Property, and the 1998 Multilateral Agreement on Investment (MAI) were never adopted. The launch of investment negotiations was initially on the Doha agenda of the World Trade Organization (WTO), but a package deal adopted in July 2004 provided that investment issues were not to be negotiated in the Doha Round of trade negotiations. On the other hand, the very same countries that have resisted any multilateral agreement on investment have signed bilateral investment treaties (BITs). Today, there are more than 2,400 BITs involving more than 175 countries (United Na-

Conservation and preservation

Aligning global governance to the challenges of sustainability is one of the most urgent environmental issues to be addressed. This book is a timely and up-to-date compilation of the main pieces of the global environmental governance puzzle. The book is comprised of 101 entries, each defining a central concept in global environmental governance, presenting its historical evolution, introducing related debates and including key bibliographical references and further reading. The entries combine analytical rigour with empirical description. The book: offers cutting edge analysis of the state of global environmental governance, raises an up-to-date debate on global governance for sustainable development, gives an in-depth exploration of current international architecture of global environmental governance, examines the interaction between environmental politics and other fields of governance such as trade, development and security, elaborates a critical review of the recent literature in global environmental governance. This unique work synthesizes writing from an internationally diverse range of well-known experts in the field of global environmental governance. Innovative thinking and high-profile expertise come together to create a volume that is accessible to students, scholars and practitioners alike.

The missing ingredient in medicine patent pools

This letter discusses the UNITAID patent that the pharmaceutical companies do not support and the competition between the pharmaceutical industry and NGOs to be the leader over the issue of access to medicines.

The European Union and the space-time continuum of investment agreements

Abstract The 2009 Lisbon Treaty transferred the competence over Foreign Direct Investment policy from the national to the supranational level. This article analyses the impact of this transfer on the content of international investment agreements and, more broadly, the shape of the investment regime complex. Is the competence shift expected to have an independent impact or simply reproduce and continue existing trends? Exploring these two conjectures through a combination of text analysis, primary materials, and interviews, we are making a Historical Institutionalist argument focusing on the timing and sequencing of international investment negotiations. While the competence shift has allowed the EU to innovate in developing its own approach to negotiating international investment agreements, notably with the proposal to create an Investment Court System, the novelty may be only at the surface as the constraints of past, current, and future negotiations restrict the options available to EU actors – we call this the space-time continuum. The result of this learning-and-reacting process is a new European approach which simultaneously duplicates and innovates and could eventually favour greater centralisation within the investment regime complex.