Article 39 is an important innovation in the protection of intellectual property under international law. It is “the first multilateral recognition of the essential role that trade secrets play in industry”38 and “the first multilateral agreement that explicitly obliges member countries to provide protection”. “Trade Secrets”. 39 A commentator on the Uruguay Round of multilateral trade negotiations concluding the WTO treaty noted: “The inclusion of trade secrets in the TRIPS Agreement has been hailed as an important innovation.” 40 8. Lorand Laskai, “Why Does Everyone Hate Made in China 2025?”, Council on Foreign Relations, March 28, 2018, www.cfr.org/blog/why-does-everyone-hate-made-china-2025. Until the 1970s, the Chinese economy was administered by the communist government and kept away from other economies. Alongside political reforms, China began opening up its economy in the early 1980s and signed a series of regional trade agreements. China was granted observer status with the GATT and began work towards joining the organization in 1986. China sought acceptance as a founding member of the WTO (which it would confirm as a global economic power), but this attempt was thwarted because the United States, European countries, and Japan called on China to reform various tariff policies first, including tariff reductions, market opening, and industrial policy. There is a growing bipartisan sentiment in Washington that Chinese trade practices are a problem, as these practices are in many ways unfair to U.S. companies. But there is disagreement on the appropriate response. Can multilateral institutions be helpful in this regard? Or is unilateralism the only way? Prior to the adoption of the TRIPS Agreement, “the protection of trade secrets was not considered part of the protection of intellectual property, but part of the general rules on unfair competition”.
41 With the adoption of the TRIPS Agreement, `undisclosed information` was for the first time among the various forms of intellectual property in a global agreement. This is one of the intellectual property rights that must be enforced under Part III of the TRIPS Agreement.42 However, a quarter of a century later, Article 39 has never been applied. There is no WTO case law on Article 39. First, China is bound not only by wto obligations that bind all other WTO Members, but also by the special rules it accepted under its accession agreement when it joined the WTO. These rules are contained in the Protocol of Accession and the report of the Working Party on China and are commonly referred to as “WTO plus” commitments. The wording of Article XXIII. (1) (b) contains three elements that a complaining party must demonstrate in order to assert a claim under Article XXIII(1)(b): (1) the application of a measure; (2) an advantage resulting from the agreement in question; and (3) the nullization or deterioration of the benefit resulting from the application of the measure.72 The WTO is an offsteps of a post-World War II trade agreement that countries such as the United States and the United Kingdom created to promote economic relations and maintain a peaceful world – a world of international institutions that all promote similar values. Given the rapid growth of China`s economy after 1978, the explosive growth of its trade, and its ability to attract record amounts of foreign direct investment, it is not immediately clear that China`s leaders see World Trade Organization membership as essential to the country`s economic future. Given the apparent success of what might be called superficial integration, why did leaders decide to bear the costs of a much deeper opening of the economy to international trade and investment? This issue is all the more confusing given that the scope and depth of the requirements for market participants in the formal international trading system have increased considerably since the formal conclusion of the Uruguay Round trade negotiations in 1994, which have considerably expanded the agenda by covering many services, agriculture, intellectual property and some aspects of foreign direct investment.