
International Technology Transfer
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This book discusses the background, objectives, approaches and progress achieved in the decade-long negotiations on an International Code of Conduct on the Transfer of Technology which took place under the aegis of UNCTAD. It examines the impact and continued relevance of the Code negotiations to subsequent policy and legislative instruments on international technology transfer, both at domestic and international levels, and identifies and examines emerging trends and negotiating agendas that will help to shape the future of international technological cooperation. The central question posed by the initiators of the Draft Code of Conduct is still relevant today - how can we facilitate a just and mutually beneficial system of technology flow in a world of rapid change and increasing gaps in the technological capability of developed and developing countries? The need for marginalized countries to access knowledge in order to learn, adjust and integrate effectively into the world economic system must be balanced with the vital need to reward inventors and innovators to ensure the continued generation of knowledge. It is these issues that will continue to dominate any future discussion on the international transfer of technology.
This book will be a valuable work of reference on the evolution of international technological cooperation in the last quarter of the 2oth century, as well as a useful guide to policymakers, scholars and international negotiators dealing with these and related issues of international economic cooperation.
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Content
- Cover
- Half Title Page
- Title Page
- Copyright Page
- Table of Contents
- LIST OF CONTRIBUTORS
- ACKNOWLEDGEMENTS
- PREFACE
- INTRODUCTION
- CHRONOLOGY OF MAIN EVENTS RELATED TO THE ORIGINS AND AFTERMATH OF THE CODE NEGOTIATIONS
- PART I The Code Negotiations: Background and Main Issues
- 1. The Rationale for Regulatory Action
- 1.1 INTRODUCTION
- 1.2 OBJECTIVES AND PRINCIPLES OF THE CODE
- 1.3 THE NEED FOR INTERNATIONAL REGULATORY ACTION
- 1.4 THE ENCOURAGEMENT OF UNPACKAGED TRANSFER
- 1.5 IMPROVEMENT OF ACCESS AT FAIR AND REASONABLE PRICES AND COSTS
- 1.6 EFFECTIVE PERFORMANCE OF TRANSFER ARRANGEMENTS
- 1.7 ENSURING THE DEVELOPMENT OF THE TECHNOLOGICAL CAPABILITIES OF RECIPIENTS
- 2. A Preliminary Evaluation of the Proposed Text
- 2.1 INTRODUCTION
- 2.2 PRESENT METHODS OF TRANSFER OF TECHNOLOGY: THE SOURCE OF CONFLICT
- 2.2.1 Present methods of transfer of technology
- 2.2.2 Importance of present methods of transfer of technology to TNCs
- 2.2.3 Negative impact of present methods of transfer of technology on LDCs
- 2.3 PREVIOUS ATTEMPTS TO REGULATE THE TRANSFER OF TECHNOLOGY: LEARNING FROM EXPERIENCE
- 2.3.1 LDC legislation
- 2.3.2 Developed country legislation
- 2.3.3 Shortcomings of existing legislation
- 2.4 REGULATION OF TRANSFER OF TECHNOLOGY BY THE CODE: AN EVALUATION
- 2.4.1 Method of evaluation of the Code
- 2.4.2 Regulation of prices and payments for technology
- 2.4.3 Elimination of restrictive business clauses
- 2.4.4. Requirements for appropriate technology
- 2.5 A MODIFIED APPROACH FOR THE CODE: FACING THE OBSTACLES
- 2.6 CONCLUSION
- 3. An Overview of the Draft Code
- 3.1 THE BACKGROUND
- 3.1.1 The first drafts
- 3.1.2 The method of negotiation
- 3.2 THE DRAFT IN ITS LATEST FORM IN APRIL 1981
- 3.2.1 The binding effect of the Code
- 3.2.2 The preamble
- 3.2.3 Chapter 1: Definitions and scope of application
- 3.2.4 Chapter 2: Objectives and principles
- 3.2.5 Chapter 3: National regulation of transfer of technology transactions
- 3.2.6 Chapter 4: Restrictive practices
- 3.2.6.1 Grant-back provisions
- 3.2.6.2. Challenges to validity
- 3.2.6.3 Exclusive dealing
- 3.2.6.4 Restrictions on research
- 3.2.6.5 Restrictions on use of personnel
- 3.2.6.6 Price-fixing
- 3.2.6.7 Restrictions on adaptations
- 3.2.6.8 Exclusive sales or representation agreements
- 3.2.6.9 Tying arrangements
- 3.2.6.10 Export restrictions
- 3.2.6.11 Patent pool or cross-licensing agreements and other arrangements
- 3.2.6.12 Restrictions on publicity
- 3.2.6.13 Payments and other obligations after expiration of industrial property rights
- 3.2.6.14 Restrictions after expiration of arrangement
- 3.2.7 Further proposals
- 3.2.8 Exceptions
- 3.2.9 The rule of reason
- 3.2.10 Commonly owned enterprises
- 3.2.11 Chapter 5: Guarantees
- 3.2.11.1 The pre-contractual phase
- 3.2.11.2 The contractual phase
- 3.2.12 Chapter 6: Special treatment for developing countries
- 3.2.13 Chapter 7: International collaboration
- 3.2.14 Chapter 8: International institutional machinery
- 3.2.15 Chapter 9: Applicable law and the settlement of disputes
- 3.2.16 Position of the 77
- 3.2.17 Proposal of Group D
- 3.2.18 Proposal of Group B
- 3.2.19 The negotiations on this issue
- 3.2.20 Chapter 10: Other provisions
- 3.3 THE FUTURE OF THE NEGOTIATIONS
- 4. Antitrust at the United Nations: a Tale of Two Codes
- 4.1 INTRODUCTION
- 4.2 ORIGINS AND PURPOSES OF THE RESTRICTIVE BUSINESS PRACTICES AND TRANSFER OF TECHNOLOGY CODES
- 4.2.1 Genesis of the RBP Code
- 4.2.2 Genesis of the TOT Code
- 4.3 DIVERGING ATTITUDES TOWARD THE RELATIONSHIP BETWEEN PATENT AND ANTITRUST LAW
- 4.4 SUCCESS, FAILURE AND IMPACT
- 4.5 CONCLUSION
- 5. Responsibilities and Obligations of Parties
- 5.1 INTRODUCTION
- 5.2 CONTEXT OF NEGOTIATIONS
- 5.3 PROVISIONS ON THE NEGOTIATING AND CONTRACTUAL PHASES
- 5.3.1 Negotiating phase
- 5.3.1.1 Responsiveness to developmental objectives
- 5.3.1.2 Business negotiating practices
- 5.3.2 Contractual phase
- 5.3.2.1 Guarantees
- 5.3.2.2 Dispute settlement
- 5.3.2.3 Liability
- 5.4 IMPACT OF CHAPTER 5
- 5.5 TRANSFER OF TECHNOLOGY IN A NEW SCENARIO
- 6. Applicable Law and Dispute Settlement
- 6.1 INTRODUCTION
- 6.2 THE CURRENT SITUATION (IN 1983)
- 6.3 THE PROPOSED TEXTS OF THE REGIONAL GROUPS OF STATES
- 6.4 THE EFFECT OF THE LEGAL CHARACTER OF THE CODE ON PROVISIONS ON APPLICABLE LAW AND THE SETTLEMENT OF DISPUTES
- 6.5 POSSIBLE APPROACHES TO PROVISIONS ON APPLICABLE LAW AND DISPUTE SETTLEMENT
- 6.5.1 The difficulties in formulating conflict of laws standards for the Code
- 6.5.2 Suggestions for provisions on applicable law and settlement of disputes
- 6.5.2.1 Provision calling for the application of the Code of Conduct
- 6.5.2.2 Provision on a Code system of arbitration
- 6.5.2.3 Current draft as a compromise package
- 6.5.2.4 Postponing a decision on conflict of laws rule
- 6.6 CONCLUDING COMMENT
- 7. A Critique of the Code Provisions
- 7.1 INTRODUCTION
- 7.2 SPECIAL PREFERENCES FOR DEVELOPING COUNTRIES
- 7.3 LEGAL CHARACTER AND EFFECT OF THE CODE
- 7.4 OBJECTIVES AND PRINCIPLES
- 7.5 CORE CHAPTER ON RESTRICTIVE PRACTICES
- 7.6 CONCLUSION
- 8. The Status of the Negotiations: a 1990 Evaluation
- 8.1 INTRODUCTION
- 8.2 TECHNOLOGICAL DEVELOPMENT AND INTERNATIONAL TECHNOLOGY TRANSFER
- 8.3 EVOLUTION OF THE NEGOTIATIONS ON AN INTERNATIONAL CODE OF CONDUCT ON THE TRANSFER OF TECHNOLOGY
- 8.4 RELEVANCE OF RECENT DEVELOPMENTS TO THE NEGOTIATIONS ON A CODE OF CONDUCT ON THE TRANSFER OF TECHNOLOGY
- 9. Negotiations on an International Code of Conduct for the Transfer of Technology
- 9.1 INTRODUCTION
- 9.2 ORIGINS OF THE DEMAND FOR COOPERATION
- 9.3 THE NEGOTIATIONS
- 9.4 THE CHARACTER OF THE CODE
- 9.4.1 Chapter 1: Definition and scope of application
- 9.4.2 Chapter 4: Restrictive business practices
- 9.4.3 Chapter 9: Applicable law and settlement of disputes
- 9.5 THE CONFERENCE SESSIONS
- 9.6 DIPLOMATIC OUTCOMES
- 9.7 AFTERMATH: REDEFINING INTERESTS
- PART II Historical Perspectives and Reflections
- 10. From Santiago de Chile (1972) to the Dawn of the Third Millennium
- 10.1 INTRODUCTION
- 10.2 ROLE OF TECHNOLOGY IN ACCELERATING DEVELOPMENT
- 10.3 TOWARDS AN INTERNATIONAL CODE OF CONDUCT ON THE TRANSFER OF TECHNOLOGY
- 10.4 AN UNCERTAIN FUTURE FOR THE CODE
- 10.5 ISSUES AHEAD AT THE DAWN OF THE THIRD MILLENNIUM
- 10.5.1 Growing inequality between rich and poor
- 10.5.2 Spreading crisis
- 10.6 A FEW CONCLUSIONS
- 11. The Pugwash Code
- 12. The Developing Countries' Quest for a Code
- 12.1 INTRODUCTION
- 12.2 FROM DECLARATIONS TO ACTIONS
- 12.3 THE PUGWASH CODE (1973-1974)
- 12.4 THE CODE NEGOTIATIONS
- 12.5 THE CHECKMATE
- 12.6 THE FINAL STAGES OF THE NEGOTIATING PROCESS
- 13. Stalemate in the Negotiations on Restrictive Practices
- 13.1 INTRODUCTION
- 13.2 ORIGINS AND PURPOSES
- 13.3 PROGRESS AND THEN STALEMATE
- 13.4 MISSED CHANCES FOR SUCCESS
- 13.5 AFTERMATH AND LESSONS LEARNED
- 14. The Evolution of the Negotiating Context
- 15. The African Experience
- 16. The Latin American Policies
- 16.1 INTRODUCTION
- 16.2 EARLY EFFORTS TO DEFINE TECHNOLOGY POLICIES IN LATIN AMERICA AND THE CARIBBEAN
- 16.3 THE DRAFT INTERNATIONAL CODE OF CONDUCT ON THE TRANSFER OF TECHNOLOGY AND ITS NEGOTIATION
- 16.4 CONCLUSION
- 17. The Role of Third Parties as Facilitators
- 17.1 INTRODUCTION
- 17.2 A MAIN ROLE FOR PUGWASH
- 17.3 NEGOTIATION AND INFORMAL DIALOGUE
- 17.4 'TO BE OR NOT TO BE'
- 17.5 TO END OR NOT TO END
- 17.6 OTHER LESSONS
- 17.7 THE FUTURE HAS ARRIVED
- 17.8 THE PAST AND THE FUTURE JOIN HANDS
- 18. Perception Gaps and Mistrust as Obstacles to Multilateral Solutions: Some Empirical Evidence
- 18.1 INTRODUCTION
- 18.2 THE DIALOGUE (QUADRILOGUE) WAS MUFFLED
- 18.2.1 The actors
- 18.2.2 Major issues
- 18.3 THE SURVEY
- 18.4 RESULTS: SIGNS OF MISPERCEPTION, MISTRUST AND HOPE
- 18.5 MISPERCEPTIONS IN UNITED STATES-CHINA TECHNOLOGY TRANSFER AGREEMENTS
- 18.6 CONCLUDING COMMENTS
- PART III Emerging Trends and Negotiating Agendas
- 19. Emerging Trends: New Patterns of Technology Transfer
- 19.1 INTRODUCTION
- 19.2 INNOVATION AND R&D ACTIVITIES
- 19.3 THE INDUSTRIALIZATION PROCESS AND CHANGES IN TECHNOLOGY DEMAND
- 19.4 THE ROLE OF DIFFERENT MODES OF FORMAL TECHNOLOGY TRANSFER
- 19.4.1 Trends in foreign direct investments
- 19.4.2 Foreign direct investment and licensing
- 19.4.3 Joint ventures
- 19.4.4 New modalities
- 19.5 PRODUCT LIFE-CYCLE AND OPEN ECONOMIES
- 19.6 APPROPRIABILITY OF TECHNOLOGY AND TECHNOLOGICAL PROTECTIONISM
- 19.7 BARGAINING POWER OF TECHNOLOGY RECIPIENTS
- 19.8 CONCLUSIONS
- 20. The Code and Globalization-Contemporary Relevance
- 21. A Changing Policy Landscape
- 21.1 INTRODUCTION
- 21.2 TRADE-RELATED INVESTMENT MEASURES (TRIMS)
- 21.3 THE GENERAL AGREEMENT ON TRADE IN SERVICES (GATS)
- 21.4 AGREEMENT ON TRADE-RELATED ASPECTS OF INTELLECTUAL PROPERTY RIGHTS (TRIPS)
- 21.5 CONCLUSIONS
- 22. An Overview of Legislative Changes
- 22.1 INTRODUCTION
- 22.2 SALIENT CHANGES IN POLICIES AND LEGISLATION
- 22.2.1 Major changes in developed countries
- 22.2.2 Growing emphasis on competition laws
- 22.2.3 Closer interaction between competition laws and FDI
- 22.2.4 Treatment of restrictive practices
- 22.2.5 Overall changes in developing countries
- 22.2.5.1 Transfer of technology regulations
- 22.2.5.2 Intellectual property regimes
- 22.2.5.3 Treatment of restrictive practices
- 22.2.5.4 Foreign investment regimes
- 22.3 A METAMORPHOSIS IN INTERNATIONAL INITIATIVES
- 22.3.1 Initiatives at the bilateral level
- 22.3.1.1 Scientific cooperation agreements
- 22.3.1.2 Investment and IPR agreements
- 22.3.2 Initiatives at the regional and multilateral level
- 22.3.2.1 Andean Group
- 22.3.2.2 North American Free Trade Agreement (NAFTA)
- 22.3.2.3 Uruguay Round Agreements
- 22.4 CONCLUSIONS
- 23. Technology Transfer in the Global Environmental Agreements: a New Twist to the North-South Debate
- 23.1 INTRODUCTION
- 23.2 DIFFERENCES IN APPROACH BETWEEN THE CODE NEGOTIATIONS AND THE ENVIRONMENT CONVENTIONS
- 23.2.1 'Improved' terms and conditions versus financing arrangements
- 23.2.2 Reversal of roles: developed countries as 'demandeurs' in the environment conventions
- 23.3 THE CONTINUED SEARCH FOR BETTER TERMS AND CONDITIONS OF TECHNOLOGY TRANSFER BY DEVELOPING COUNTRIES
- 23.4 NEW TOT MECHANISMS TAILORED TO SPECIFIC ENVIRONMENTAL CONCERNS
- 23.5 CONCLUSION
- 24. The TRIPS Agreement and Development
- 24.1 GENERAL
- 24.2 TRIPS AGREEMENT
- 24.2.1 General principles
- 24.2.2 Enforcement of intellectual property rights
- 24.2.3 Dispute settlement
- 24.2.4 Patent regime under the TRIPS Agreement
- 24.2.4.1 Duration, coverage and criterion of patentability
- 24.2.4.2 Rights conferred on the patentee
- 24.2.4.3 Compulsory license
- 24.2.4.4 Burden of proof for process patents
- 24.3 DEVELOPING COUNTRIES AND THE TRIPS AGREEMENT
- 24.3.1 Pharmaceutical products
- 24.3.2 Patenting of biotechnological inventions
- 24.4 TRANSFER OF TECHNOLOGY AND TRIPS
- 24.5 PROPOSED MEASURES FOR THE FUTURE
- 24.5.1 At the national level
- 24.5.2 At the regional level
- 24.5.3 At the international level
- 25. Global Competition and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)
- 25.1 INTRODUCTION
- 25.2 COMPETITIVE ROLE OF THE DEVELOPING COUNTRIES IN AN INTEGRATED WORLD MARKET
- 25.3 PRESENT TENSIONS AND THE PROSPECTS FOR A FUTURE EQUILIBRIUM
- 25.3.1 Balancing interests at the local level
- 25.3.2 Towards a transnational pro-competitive equilibrium
- 26. Competition, Intellectual Property Rights and Transfer of Technology
- 26.1 INTRODUCTION
- 26.2 TRIPS AND THE TECHNOLOGY TRANSFER
- 26.2.1 Antitrust rules of TRIPS
- 26.2.1.1 The reach of Article 8(2) and Article 40
- 26.2.1.2 The concepts underlying Article 8(2) and Article 40
- 26.2.2 Beyond TRIPS
- 26.2.2.1 The context of technology transfer
- 26.2.2.2 Relationship with WTO antitrust code
- 26.3 SOME ISSUES OF SUBSTANTIVE LAW RELATED TO TECHNOLOGY TRANSFER
- 26.3.1 Antitrust and information markets
- 26.3.2 Other issues of current interest
- 26.4 CONCLUSION
- 27. The Unfinished Agenda
- 27.1 INTRODUCTION
- 27.2 THE REFORMIST AGENDA OF THE 1970s
- 27.2.1 The international agenda of developing countries
- 27.2.1.1 The Paris Convention
- 27.2.1.2 An International Code of Conduct on the Transfer of Technology
- 27.3 THE GROWING IMPORTANCE OF KNOWLEDGE TO COMPETITIVENESS
- 27.4 NEW ISSUES ON THE GLOBAL AGENDA
- 27.4.1 Intellectual property and the multilateral trade agenda
- 27.5 FROM THE CODE NEGOTIATIONS TO THE TRIPS AGREEMENT
- 27.5.1 The compulsory licensing issue
- 27.5.2 Restrictive business practices
- 27.5.3 Know-how
- 27.5.4 Performance requirements
- 27.5.5 Transfer of technology to developing countries
- 27.6 CONCLUSION
- 27.7 IDEAS TOWARDS A NEW AGENDA
- PART IV Annexes
- ANNEX I THE PUGWASH CONFERENCES ON SCIENCE AND WORLD AFFAIRS WORKING GROUP ON CODE OF CONDUCT ON TRANSFER OF TECHNOLOGY DRAFT CODE OF CONDUCT ON TRANSFER OF TECHNOLOGY (REPORT OF THE WORKING GROUP) GENEVA, 1-5 APRIL 1974
- ANNEX II DRAFT INTERNATIONAL CODE OF CONDUCT ON THE TRANSFER OF TECHNOLOGY (AS OF 1985)
- Annex III REFERENCES AND SELECTED BIBLIOGRAPHY
- INDEX
- Back Cover
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