The inadequacy of compliance theory: A case study of Saudi Arabia and TRIPS

Abstract

Innovation and emerging technologies continue to drive the marketplace and global economy, increasing the convergence of international companies working with each other and necessitating the negotiation and adoption of new legal agreements between states. International trade law has sought to maintain the integrity of the global market by protecting intellectual property (“IP”) and establishing international agreements, including the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”), that ensure the protection of IP rights and related rights at the international level. Compliance with such agreements has been the subject of considerable debate among legal scholars, many of whom wrestle with binary frameworks that depict states as either compliant or non-compliant. This study investigates one international actor, the Kingdom of Saudi Arabia (“the KSA” or “the Kingdom”), and the factors that govern the extent of its compliance with international legal agreements, and particularly with TRIPS. Adopting a library-based, qualitative analytical approach, this thesis discusses the lack of consensus over the relationship between compliance and implementation and the absence of a suitable theory that examines compliance comprehensively. First, a distinction is drawn between the KSA’s implementation of TRIPS and its compliance therewith, and the gap between the two is assessed. Next, through a critique of various theories of compliance, the challenges it presents even for those states that wish to comply are considered. Finally, Jacobson and Weiss’s comprehensive model of compliance is applied to the case of the KSA to develop a deeper understanding of the Kingdom’s complex relationship with TRIPS and with international legal agreements generally. The findings suggest that scholars may be better served by a sliding scale model as opposed to the widely practised binary model.