Amend ACTA: Due Process in Ch. 2

Jimmy Koo
September 14, 2010

AMENDMENT

In Chapter Two, General Obligations, Art. 2.X.2, ADD the italicized text below. 

Procedures adopted, maintained, or applied to implement this Chapter shall be fair and [US:  ,]equitable, [US:,and provide appropriate due process and protections for all participants subject to the procedures.  These procedures] [They] shall not be unnecessarily complicated or costly, or entail unreasonable time-limits or unwarranted delays.     Such procedures shall include, at a minimum, an opportunity for a hearing regarding the merits of the alleged violations before competent authorities of each Party.  The determination of the competent authorities shall be enforced only after an opportunity for a hearing, unless irreparable harm is imminent.  Each Party may allow for any person adversely affected by a final determination to appeal such determination.  [EU:  Each Party shall ensure that the rights of the [EU/CH:  defendants and] third parties shall be duly protected and guaranteed.]

Justification

As currently drafted, ACTA does not require the merits of the alleged violations to be investigated and verified before measures may be implemented and enforced.  The provision merely states that procedures “shall be fair and equitable”.  As a term of art, the phrase “fair and equitable” only sets aspirational goals and principles and does not set concrete rights and obligations of the parties involved.  In order to truly ensure that the rights of the defendants and third parties are duly protected and guaranteed, this provision must include an enumeration of minimum procedural protections.     

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