Bibliographie sélective OHADA

In the present era of rapid globalisation, countries are intrinsically integrated with each other by way of international trade to ensure optimal utilisation of their resources. Trade facilitation is now recognised as a key driving factor in determining export competitiveness of a country. Customs administrations, the frontier border agency responsible for regulating import and export of legitimate goods, are increasingly faced with the challenge of intellectual property rights (IPR) infringement. In addition to national governments, various international organisations have devised guidelines and tools to facilitate and empower Customs agencies in their fight against IPR infringement. In particular, the multilateral Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) of the World Trade Organization (WTO) articulates a prescription for border enforcement of IPRs in Articles 51-60. In this backdrop, this thesis attempts to answer a very fundamental question: What are the implications of ‘Border Measures’, specified under the WTO TRIPS Agreement, for facilitating international trade? To this end, it critically examines the concepts of trade facilitation, TRIPS and IPR protection to highlight the links that connect them and the missing links that need to be established. Obligations to protect IPR under national and international laws are also scrutinised. Research shows that efforts by WTO, World Customs Organization (WCO) and World Intellectual Property Organization (WIPO) have been instrumental in this context. While policy planning at the national level should be the first priority, commitment by the advanced economies to support their less developed counterparts through technology transfer (TT) is of paramount importance. The thesis suggests that TRIPS-plus provisions, if implemented arbitrarily by developed countries, have the potential to undermine the interests of countries with resource constraints. In this context, the thesis analyses the effects and implications of the Trans-Pacific Partnership (TPP) and the Trans-Atlantic Trade and Investment Partnership (TTIP) agreements, and the Revised Kyoto Convention (RKC) for the border protection of IPRs. The thesis investigates the socio-economic impacts of IPR infringement and articulates strategies to be adopted and applied at individual, collective, business and government levels to stop trade and use of IPR infringed goods. Drawing on the analysis of the relevant WTO Articles, scrutiny of various border measures put in place by national governments and international bodies, and current state of play under the Doha Development Round (DDR), the thesis puts forward a set of short and long term policy recommendations for all relevant stakeholders. These inclusively include: (i) strengthening risk management procedures; (ii) cooperation and coordination at national and international levels; (iii) awareness raising initiatives; (iv) establishing advanced technologically driven border enforcement system; (v) empowering Customs with effective administrative authority; (vi) IP related technical capacity building within the Customs and business community; (vii) technology transfer to LDCs from developed countries; and (viii) LDC friendly dispute settlement process under the WTO.

"The main objective of the thesis is to examine whether improved market access for the exports of the least developed countries (LDCs) is a significant means for achieving sustainable development through trade. Further, it aims to examine whether LDCs face challenges in achieving their sustainable development in the existing market access regime... Recognising the specific needs of LDCs, the Preamble to the 'WTO Agreement' calls for positive efforts designed to ensure that LDCs secure a share in the growth in international trade commensurate with the needs of their economic development."

International trade relations have become much more legalised under the World Trade Organization (WTO) than under the former international trade system created pursuant to the General Agreement on Tariffs and Trade (GATT). The Dispute Settlement Understanding (DSU) of the WTO clearly represents a shift toward a rule-oriented, legalistic and adjudicative approach, which is intended to enhance that status of, and confidence in, the WTO dispute settlement system. The approach is likely to ensure greater stability and predictability in the system by encouraging precise decisions on the merits of disputes and discouraging infractions. Its greater binding effect serves as a powerful disincentive to those Members who have a propensity to favour unilateral measures to solve international trade disputes. This is particularly beneficial for developing countries that sought a system which recognises their disadvantaged position compared to the greater bargaining and retaliatory power of developed countries. However, despite the positive assessment of the WTO dispute settlement system, the functioning of the system is working against the interest of developing countries in having an efficient dispute settlement system that considers their needs and deals fairly with their disputes. This thesis examines the participation of developing countries in the dispute settlement system of the WTO, and argues that they are in a disadvantageous position compared to their developed counterparts. The system's failure to effectively address or efficiently deal with this position is an evidence of its bias against and deficiency towards developing countries' participation. The thesis focuses on the problematic issues developing countries face throughout their use of the system. It also considers the role that the DSU has played in addressing these issues and the efficiency of that role in restraining and limiting their effect on developing countries' participation in the system. The thesis analyses some ideas on the reform of the DSU that have been proposed through WTO negotiations or literature, and discusses their applicability on the current dispute settlement system. Finally, the thesis employs these proposals along with its discussion on the subject to introduce a reformed model of the DSU which is more sensitive to developing countries' concerns in the system in order to help providing an understanding of how such modifications could be carried out in future reforms on the DSU.