(2000; 91 pages)
3.11 State practice and WTO participation
When a WTO dispute arises, obviously the parties to the dispute can present their arguments (complaint and defense) to the Panel concerned. But other WTO members can also make submissions when they have a trade interest in the case. For instance in the case of the EU complaint against Canada on the Bolar provision, a number of countries, including some developing countries such as Colombia, made submissions for the consideration of the Panel. Such active participation by developing countries in the WTO is important, since it will draw attention to their policy objectives and it will highlight possible implications from their perspective; these factors will be taken into consideration by the Panel.
Similarly, state practice is important when a decision is taken by a Panel or Appellate Body. This means that the kind of legislation countries adopt in order to implement the Agreement will create precedents that may influence decisions by WTO Panels and the Appellate Body. If for instance all the ASEAN countries adopt provisions related to the protection of public health, this will create a kind of state practice which the Panels will need to consider. According to the Vienna Convention, one of the elements to be taken into account for the interpretation of international agreements, is the way in which countries have applied a particular treaty.
It is therefore important to consider that what is done at the national level may also have an impact in terms of interpretation of the Agreement. If countries use a very limited, strict interpretation of the TRIPs Agreement, Panels will look at TRIPs issues in the same ‘narrow’ way, but if countries use a broader interpretation, the Panels and Appellate Body may read the TRIPs Agreement in the same way.