In addition to its operative provisions, the TRIPs Agreement contains a series of procedural rules aimed at ensuring enforcement of the protection of intellectual property rights.

If a Member considers that another Member is not fulfilling its obligations under the Agreement, it can initiate the mechanism for the settlement of disputes provided for in the “Understanding on the Settlement of Disputes”. The new formula for this mechanism ensures that a decision is taken relatively quickly and that any unfavourable verdict is decided upon by “negative consensus”. This means that, for a decision to be rejected by a panel, there must be a consensus to do so; in other words, a decision against a particular country may be adopted because there is no consensus to reject it.

Once the dispute settlement mechanism has been exhausted, the country concerned may apply trade sanctions against the country which is deemed to be infringing. Once these proceedings have been exhausted, action such as that taken under section 301 of the aforementioned United States Act becomes legitimate, even for sectors other than those affected by non fulfilment (“cross retaliation”).

Lastly, it should be borne in mind that the TRIPs Agreement lays down minimum standards and that, at the same time, no Member country can be obliged to grant “more extensive protection” than required by the Agreement (Article 1). This signifies that any unilateral action on the part of governments requiring a higher standard of protection than that required by the Agreement or the application of trade retaliations on such grounds will clearly be unlawful within the framework of GATT 1994.