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The USTR may seek retaliation against such priority countries through

trade mechanisms such as imposing tariff, restricting imports or holding off
some trade agreements. Since the Dispute Settlement Understanding of the

World Trade Organization (DSU) evidently bars unilateral trade retaliation outside
(39)
of the WTO system, the coherence of the Special 301 process with the WTO
(40)
rules is disputable.

For instance, in 2010, the United Stated designated Thailand as a

priority country under the Special 301 Report due to its hesitation to amend

both its IP law in compliance with the demand of the United States which

requires customs to confiscate pharmaceuticals in case they use a similar
(41)
trademark to a pharmaceutical owned by giant drug corporations.

C. TRIPS-plus obligations through the FTAs

Some FTAs also set out TRIPS-plus obligations that can immensely bar
accessibility to pharmaceuticals. These agreements usually exchange health

considerations with tariff benefits or market access. Some FTAs abandon the

transition periods existing for developing countries provided by the TRIPS

(39)
The Dispute Settlement Understanding (DSU), Article 23.1, provides that çwhen Members
seek the redress of a violation of obligations or other nullification or impairment of benefits
under the covered agreements . . . they shall have recourse to, and abide by, the rules
and procedures of this Understanding.é
(40)
Amy Kapczynski, çHarmonization and Its Discontents: A Case Study of TRIPS
Implementation in Indiaûs Pharmaceutical Sector,é†California Law Review†97, no. 9 (2009):
1630; Panel Report, United States›Sections 301›310 of the Trade Act of 1974, WT/DS152/R
(1999).
(41)
çEye on the Ball: Medicine Regulation › Not IP Enforcement › Can Best Deliver Quality
Medicines,é OXFAM International, 2011, https://www.oxfam.org/en/research/eye-ball.

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