Politics, Compromise, Text and the Failures of the Anti-Counterfeiting Trade Agreement 33 Sydney Law Review 2011

33 Sydney L. Rev. 229 (2011)
Politics, Compromise, Text and the Failures of the Anti-Counterfeiting Trade Agreement

handle is hein.journals/sydney33 and id is 233 raw text is: Politics, Compromise, Text
and the Failures of the
Anti-Counterfeiting Trade
Agreement
Kimberlee Weatherall*
Abstract
The Anti-Counterfeiting Trade Agreement ('ACTA') was concluded in
December 2010 after three years of controversy-plagued negotiations. This
plurilateral agreement seeks to set new international standards for the
enforcement of intellectual property (IP'), and promote global cooperation in
that field. Many have questioned the validity of negotiating a plurilateral
agreement on IP enforcement. This article does not seek to re-tread that well-
worn ground. Instead, the article evaluates the claims made for ACTA by its
supporters and proponents. Two key claims are made for ACTA: that it will
improve international cooperation in 1P enforcement; and that it will enhance
the legal framework by establishing a 'new standard of IP enforcement'. This
article seeks to assess these claims seriously, through a careful examination of
the ACTA text in context. The picture that emerges is that first, even in areas
where the ACTA text appears to be prescriptive, it is less so than first appears
owing to the adoption of politically expedient language and, second, that the
provisions addressing international cooperation are rudimentary in comparison
to other plurilateral enforcement-related treaties such as the Convention on
Cybercrime. As a result, ACTA perhaps stands as an object lesson in how not to
negotiate an agreement on international cooperation in law enforcement.
Introduction
The Anti-Counterfeiting Trade Agreement ('ACTA') was concluded in December
2010, after three years of controversy-plagued negotiations.' This plurilateral
agreement seeks to set new international standards for the enforcement of
* Kimberlee Weatherall, Senior Lecturer in Law, TC Beime School of Law, The University of
Queensland. The author thanks the three anonymous reviewers for their valuable comments.
The final text of the Anti-Counterfeiting Trade Agreement (after legal review) was published on
3 December 2010, and is available at the website of the Commonwealth of Australia Department of
Foreign Affairs and Trade, Anti-Counterfeiting Trade Agreement (opened for signature 31 March
2011) (not yet in force) ('the ACTA') <http://www.dfat.gov.au/trade/acta/index.html>. The
Agreement has not yet been formally signed and will enter into force when six instruments of
ratification, acceptance or approval have been deposited: ACTA, art 40.

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