When TRIPS Takes Trips: Rethinking the Territoriality Requirement in China – Enforcement of Intellectual Property Rights

This article examines the interpretative divergence in China – Enforcement of Intellectual Property Rights, the first WTO dispute to address whether TRIPS obligations contain an implicit territorial limitation. The Panel adopted a strict territorial reading of Article 1.1, holding that TRIPS disciplines apply only to the implementation of minimum standards within a Member’s domestic legal system, and do not extend to measures where the effects are felt abroad. The Multi-Party Interim Appeal Arbitration Arrangement (MPIA) arbitrators reversed this approach, introducing a functional, effects-sensitive interpretation under which Members must implement TRIPS in a manner that does not frustrate the enforcement of intellectual property rights in other jurisdictions. The article argues that the Tribunal’s expanded interpretation is inconsistent with the text, structure, object and purpose, and negotiating history of the TRIPS Agreement. A close reading of Article 1.1 demonstrates that ‘give effect to’ refers to domestic legal operability rather than cross-border consequences. The systemic design of TRIPS, establishing a minimum-standards regime primarily concerned with the domestic implementation of intellectual property protection, further confirms that it does not impose transnational enforcement obligations. The article situates the WTO dispute, China – Enforcement of Intellectual Property Rights within broader debates on the multilateral governance of intellectual property. While acknowledging that cross-border spillovers are increasingly common in global standard-essential patent (SEP) litigation, it maintains that such challenges are better addressed through institutional cooperation and private ordering than through judicial expansion of treaty obligations. The analysis clarifies the limits of WTO adjudication in the intellectual property (IP) domain and reaffirms territoriality as a foundational principle of the TRIPS regime.