Export Restrictions in Plant Breeder's Rights

Matthew Kennedy

Journal of International Economic Law, 2017, vol. 20, issue 4, 883-903

Abstract: This article exposes a conflict between UPOV (1991) and GATT 1994. UPOV (1991) provides for the grant of an exclusive exportation right over plant and other material and for the revival of this right after exhaustion. The exclusive exportation right constitutes an export restriction inconsistent with Article XI:1 of GATT 1994 that lacks a justification in Article XX(d) or any other GATT exception. Many WTO Members join UPOV (1991) as a means of implementing a TRIPS obligation but TRIPS neither requires nor authorizes the grant of exclusive exportation rights inconsistent with GATT 1994. Certain free trade agreements do require ratification of UPOV (1991) but paradoxically reiterate the obligation in Article XI:1 of GATT 1994 as well. The article concludes that laws providing for exclusive exportation rights for plant breeders are vulnerable to challenge in the WTO dispute settlement mechanism.

Date: 2017
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