Common law is becoming increasingly unreliable regarding IP

In recent years there has been a substantial amount of debate surrounding the question of whether or not the court system is the appropriate mechanism to resolve intellectual property disputes. The increasing complexity of the intellectual property disputes- in particular patents- have necessitated the use of expert witnesses to explain often incomprehensible technical aspects to judges, and juries alike. The intention of the experts is to teach these individuals, within a short space of time, aspects of science and technology that have taken seasoned experts, in the relevant field, years of study to understand and master. 6 The plaintiff and defendant are then required to trust that the court has sufficiently understood the evidence to give a correct order or verdict. These orders have far reaching economic implications that may not only affect the parties involved but, depending on the market share and size of the companies or individuals involved, may also affect hundreds and thousands of employees and consumers worldwide.7

The TRIPS Agreement was one of the first attempts at the international harmonisation of intellectual property law. The TRIPS Agreement created a minimum set of obligations that Member states needed to institute in order to be in compliance with the Agreement- one of these being that Member states must ensure that there are enforcement procedures available for intellectual property right holders.8 The TRIPS Agreement, however, does ‗not create any obligation to put in place a judicial system for the enforcement of intellectual property rights distinct from that for the enforcement of law in general...‖.9 The Agreement thus allows Member States the discretion to decide on a judicial system that is in line with their national policy or judicial system.10