The WTO Is Dead, Long Live the WTO: The Lingering Interpretive Problem of Article 27.1 of the TRIPS Agreement
Amidst populist discontent with the former bipartisan championing of the agenda of free trade liberalization, this article revisits a lingering interpretive problem within one of the key instruments of that agenda—the World Trade Organization’s (WTO) Trade Related Aspects of Intellectual Property Rights (TRIPS) agreement. Having long been a battle ground over patents and public health, the TRIPS has come into renewed controversy in recent years ever since Donald Trump’s refusal to seat new appellate officials to hear cases before its dispute settlement mechanism and even more notably in the wake of rich country opposition to India and South Africa’s request for a waiver of key TRIPS provisions in October 2020 at the height of the COVID-19 pandemic. Specifically, the article revisits Article 27.1’s mandating that “patents shall be available and patent rights enjoyable without discrimination as to the place of invention, the field of technology and whether products are imported or locally produced.” Having always been regarded as a possible threat to flexibilities allowing deviation from strict patent rights of the kind developing countries have fought so hard to validate to preserve their ability to prioritize public health, the meaning of Article 27.1 remains less than fully resolved.
After summarizing the contours and sources of this interpretive problem, the article dissects the one (and only) key WTO dispute touching on its non-discrimination provision. In so doing, it counterposes the most common proposed solution to addressing the interpretive problem it poses—of constructing an a priori distinction between unlawful discrimination and lawful differentiation—with actual instances of technology-specific legal and policy choice by countries in the global North during the TRIPS era. In documenting the latent anti-formalism informing such legal and policy choice and juxtaposing it with the stance many of the same countries have taken in the “drugs-for-the-developing” world debate, the article offers a broader critique of formalism as a mode of solving interpretive problems in the context of grappling with the norms of free trade liberalization and social provisioning in instruments like the TRIPS.
Recommended Citation: Faisal Chaudhry, The WTO Is Dead, Long Live the WTO: The Lingering Interpretive Problem of Article 27.1 of the TRIPS Agreement, 49 Fordham Int'l L.J. 651 (2026).