The Desirability of Agreeing to Disagree: The WTO, Trips, International IPR Exhaustion and a Few Other Things

This Article proposes a procedural and substantive approach specifically designed to achieve this result. Concerning process, interim national and regional decisionmaking and the multilateral debate must expressly broaden and clarify the values and interests at stake. Three basic operational principles advance this objective. First, comparisons based on IPR labels (patent, copyright, and the like) confuse rather than illuminate.

Instead, focus must be on the actual underlying policy justifications and objectives. Second, the full range of implicated justifications (economic and otherwise), including those outside the decision-makers' own norms, must be expressly identified and considered. Finally, any position taken or decision reached must transparently disclose the normative basis for the outcome, specifically indicating which justifications have been adopted, which have been rejected, and the reasons why.