Negotiating history. Neither the Anell Draft211 nor the Brussels Draft212 contained a provision on secu- rity exceptions. The Xxxxxx Draft,213 by contrast, did provide for security excep- tions. This provision was essentially the same as the current Article 73.
Negotiating history. Industrialized countries with established rules for the control of intellectual property-related anticompetitive practices were not interested in establishing such rules in the TRIPS context. Instead they focused on the formulation of adequate standards of intellectual property protection. Thus, it was the developing coun- tries, once it became clear that TRIPS negotiations would extend beyond matters of counterfeiting and piracy, who insisted on including the issue of anticompetitive practices in the Agreement.9 In part they were of the opinion that restrictive trade practices were the only trade-related aspects of intellectual property protection,10 6 Havana Charter for an International Trade Organization, United Nations Conference on Trade and Employment, held at Havana, Cuba, Nov. 21, 1947 to Mar. 24, 1948, Final Act and Related Documents (March 1948), at Chapter V, Restrictive Business Practices, Article 46. See Xxxxxxxxx
Negotiating history. Since TRIPS is a new and unprecedented Agreement in the WTO, and since it was clear that the adjustment of the internal legal regimes of developing and 1 In the framework of the WTO, the GATT 1947 is replaced by the identical GATT 1994. 2 On the other hand, the GATT admits grandfather clauses allowing countries that accede to it to maintain pre-existing domestic legislation inconsistent with GATT provisions. In addition, the GATT in Part IV (Trade and Development) contains some provisions on special treatment for developing countries. For instance, according to Article XXXVI:8 of the GATT, “developed contracting parties do not expect reciprocity for commitments made by them in trade negotiations to reduce or remove tariffs and other barriers to the trade of less-developed contracting parties”. 3 See Article XXXVI:4 of GATT 1994. 4 See Article XXXVI:8 of GATT 1994.
Negotiating history. The negotiating history of these provisions suggests that the Agreement did not undergo any major changes. The most significant differences are outlined below. 58 See also Xxxxx Xxxxxx, Encouraging International Technology Transfer, UNCTAD-ICTSD, Geneva 2004, available at <xxxx://xxx.xxxxxxxxxx.xxx/unctadictsd/projectoutputs.htm#casestudies>. [hereinafter Maskus, 2004]
Negotiating history. 25. The intcrprctation of Articlc 1105 has proved to bc particularly difficult for various tribunals and, indeed, for the NAFTA Parties themselves. This Tribunal has grappled with the xxxxx inconsistencies between the provisions of BITs and corresponding commitments in Article 1105.7 Other tribunals have laboured over the relationships between Articlc 1105 and other commitments in Chapter 11 as well as commitments made by the NAFTA Parties in other agreements.8 And the NAFTA Parties themselves found it necessary to promulgate the Interpretation.9
26. Against this background, it is beyond argument that the original texts of Article 1105 and other provisions of Chapter 11 contained ambiguities that had to be resolved by those charged with interpreting those texts. In such cases, it is common and proper to turn to the negotiating history of an agreement to see if that might shed some light on the intentions of the signatories.10 Given the ambiguities in Article 1105, that inquiry was one that this Tribunal would have been required to make at some point in these proceedings.
27. In the event, the matter ofnegotiating history arose at an early stage in the proceedings. During the hearings in Montreal in November, 2000, the Tribunal sought to investigate the inconsistencies it saw between the BITs and Article 1105. At that time it asked Canada whether the different formulations were intentional or accidental.11 In response, Canada referred the Tribunal to a submission of the United States, which asserted that the difference was the product of a conscious decision by the NAFTA Parties to change the approach in the BITs.12
28. It was then that the Tribunal asked Canada and, through it, the other NAFTA Parties whether travaux preparatories13 existed that might support the contention of the United States or otherwise shed light on the matter.14 1354 INTERNATIONAL LEGAL MATERIALS [VOL. 41 : Relying on the assurances of counsel for Canada that they did not,15 the Tribunal proceeded on that basis.16 It did, however, ask the question again in a written request, which produced the same result.17
29. During the November 2000 hearing, counsel for the Investor reminded the Tribunal that he had previously been advised officially that travaux regarding NAFTA did not exist,18 basing his statement on a letter his office had received from DFAIT dated May 5, 1997.19
30. That letter bears examination. It was sent by the Coordinator for Access to Information and Privacy, purportedl...
Negotiating history. Whereas at the outset of the TRIPS negotiations the United States proposals con- tained no mention of geographical indications,357 the initial substantive submis- sion by the European Community of July 1988 included a detailed provision on the protection of geographical indications in which can already be seen the outlines of the TRIPS Agreement rules.358
2.2.1 The EC proposal
(i) Geographical indications are, for the purpose of this agreement, those which designate a product as originating from a country, region or locality where a given quality, reputation or other characteristic of the product is attributable to its geo- graphical origin, including natural and human factors. 354 Id., Article 2. 355 OJ L 084, 27/03/1987 p. 0059-0068. 356 See, e.g., Council Regulation (EC) No 1493/1999 of 17 May 1999 on the common organization of the market in wine. 357 Suggestion by the United States for Achieving the Negotiating Objective, MTN.GNG/NG11/ W/14 (October 1987), and Revision, 17 October 1988, MTN.GNG/NG11/W/14/Rev. 1. 358 Guidelines and Objectives Proposed by the European Community for the Negotiations on Trade Related Aspects of Substantive Standards of Intellectual Property Rights, MTN.GNG/NG11/W/26.
(ii) Geographical indications shall be protected against any use which constitutes an act of unfair competition, including use which is susceptible to mislead the public as to the true origin of the product. Shall notably be considered to constitute such use: – any direct or indirect use in trade in respect of products not coming from the place indicated or evoked by the geographical indication in question; – any usurpation, imitation or evocation, even where the true origin of the product is indicated or the appellation or designation is used in translation or accompanied by expressions such as ‘kind’, ‘type’, ‘style’, ‘imitation’ or the like; – the use of any means in the designation or presentation of the product likely to suggest a link between the product and any geographical area other than the true place of origin.
(iii) Where appropriate, protection should be accorded to appellations of origin, in particular for products of the vine, to the extent that it is accorded in the country of origin.
(iv) Appropriate measures shall be taken under national law for interested parties to prevent a geographical indication from developing into a designation of generic character as a result of the use in trade for products from a different origin, it being understoo...
Negotiating history. As with other provisions, Article 10 was the subject of several different proposals. With regard to computer programs, earlier drafts of Article 10.1 reflected a struggle over a compromise agreement on what precisely the scope of such a provision might be.
2.2.1 The Anell Draft
Negotiating history. The negotiating history of Article 68 was intertwined with the substantive aspects of the negotiations. Since the idea of substantive standards in TRIPS itself was not commonly accepted until the mid-term review of the Uruguay Round in April 1989, not much consideration was given to what kind of body would supervise the operation of an agreement in this area. Adding to this complication was the debate on what exactly the successor organization to the GATT would be. Developing countries, in general, insisted for a long time after the Uruguay Round was launched that both TRIPS and the Services Agreement should be on separate tracks and not on a par with negotiations in the goods area. Their idea was to make these two subjects non-justiciable under any possible dispute settlement rules. While this did not happen, it constituted the main reason for the developing countries’ entertaining the idea of a separate organ for supervision of TRIPS.
2.2.1 The Anell Draft
Negotiating history. The Union points to what it characterizes as prior attempts by the Employer “to narrow the language of Article 21.06 (and its predecessor provisions) without success”. This has involved seeking to exclude regular part-time employees from the provision during negotiations for the 1984-1989 Collective Agreement, and seeking to delete the words “called to work outside their regular shift” from the provision during negotiations for the 1989-1992 Collective Agreement. Xxxxxxx proposal was agreed to by the Union. On the other hand, the Employer points to a proposal regarding Article 21.12 tabled by the Union on October 29, 2009 during the most recent round of negotiations (the proposed amendment is underlined): The Parties agree that the Company will pay a premium of an additional two (2) hours pay, at the employees regular hourly rate of pay, per shift (until employee returns to their regular shift) if an employee is called to work outside their regular shift, provided however, the employee receives less than twenty-four (24) hours notice to, report to a different shift. The premium shall be in addition the double time (2X) their regular rate paid to the employee who works outside their regular shift. If the employee receives more than twenty-four (24) hours notice to work outside their regular shift, the employee will be paid double time (2x) their regular rate. Nothing in this Article allows the Employer to alter the regular shift without following Article 19.01. This proposal was not accepted, and the Employer says it was put forward by the Union “because it did not have the entitlement it now argues for”. Xx. XxxXxxxx testified, however, that the Union bargaining committee wanted to clarify and not change the language, and advised the Employer at the table that this proposal did not represent a change in intent. He added that the proposal was prompted by two occasions where the Employer had wanted to move an employee without a shift bid, and the Union had agreed on a without prejudice basis. Finally, a series of exchanges between the parties during the most recent round of bargaining bears on the Employer’s estoppel argument. Xx. XxxXxxxx initiated the exchanges when he wrote to Xxxx Xxxxx, the Employer’s Manager of Labor Relations and its spokesperson in bargaining, on January 21, 2010: During the mediation process at the Labour Relations Board on January 20, 2010, at approximately 1:30pm, the employer tabled a proposal which contained the following langua...
Negotiating history
