The Max Planck Principles as an Aspect of Global Administrative Law
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The Max Planck Principles as an Aspect of Global Administrative Law Rochelle Cooper Dreyfuss
Published online: 16 November 2013 Max Planck Institute for Intellectual Property and Competition Law, Munich 2013
The Max Planck Institute for Intellectual Property and Competition Law’s Principles for Intellectual Property Provisions in Bilateral and Regional Agreements (MPI Principles) are an admirable effort to respond to the concern that expanding international regulatory activity is restricting the ambit for local action in ways that undermine norms of democratic self-governance. As such, the Observations and Recommendations included in the Principles have much in common with the Global Administrative Law (GAL) movement, which is aimed at improving the accountability and legitimacy of global lawmaking. Drafters of the MPI Principles could learn from both the proponents and critics of GAL theory. Moreover, the Principles have much to teach GAL theorists.
1 Global Administrative Law Launched by Benedict Kingsbury, Nico Krisch, and Richard Stewart (2005), the GAL movement takes as its starting point the notion that in many significant areas, regulation is necessarily transnational. People, knowledge, and goods move readily across borders; pollution, climate change, terrorism, and conspiracies to restrain trade are indifferent to national boundaries; many initiatives – from labor standards to monetary policy to intellectual property protection – have substantial spillover effects. Without some level of cooperation among nations, effective control would be impossible. In many of these areas, collective control initially takes the form of multilateral treaties and conventions (for intellectual property, these include the Berne and Paris R. C. Dreyfuss (&) Pauline Newman Professor of Law New York University School of Law, 40 Washington Square South, Room 333, New York, NY 10012, USA e-mail: [email protected]
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The Max Planck Principles as an Aspect of Global Administrative Law
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Conventions, and the TRIPS Agreement1). But these core instruments provide only broad strokes for dealing with issues demanding transnational administration. Elaboration of their basic tenets occurs in tribunals established by these instruments to resolve disputes (the WTO’s Dispute Settlement Body (DSB) is an example2), in diverse international organizations involved in related areas (WIPO, the WTO, WHO, UNCTAD, and such3), and in agreements among smaller (and changing) groups of nations (ACTA, the TPP, and FTAs are examples4). Implementation is even more complex: it often depends on informal and decentralized mechanisms, including national bureaus (patent, copyright, and trademark offices; agencies concerned with such matters as competition and drug safety) and domestic courts, through private–public partnerships (such as ICANN5), and by private parties (such as standard setting organizations6). Because these international organizations, national governments, national regulators, courts, and private organizations act autonomousl
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