Impact Assessment Study on the Trade -Related Aspects of Intellectual Property Rights (TRIPS) Regime of Ethiopia

RFP/011/2010

Terms of Reference (TOR) for the Impact Assessment

Study on the Trade -Related Aspects of Intellectual

Property Rights (TRIPS) Regime of Ethiopia

I.       Introduction and Background

Ethiopia applied to join the World Trade Organization (WTO) in January 2003 and is currently undertaking activities aimed at ensuring rapid integration into the multilateral trading system.  The country has submitted its Memorandum on the Foreign Trade Regime (MFTR) in 2007.  Based on the MFTR, two rounds of questions have been received from three countries – the US, Canada and European Union and replies have been submitted to the WTO Secretariat. The first working party meeting took place in May 2008 and the second meeting is expected to be held soon.

The experiences of recently acceded countries show that the accession process is difficult and complex demanding adequate preparation and coordination to make well-informed decisions.  This, obviously, requires assessments of WTO rules and disciplines from the perspective of national interests. Such assessments should generate information which gives clear picture of the implications of WTO membership on the acceding economy. They should also focus on how the benefits of membership can be maximized and on ways of simplifying the accession process.   With this understanding, various impact assessment studies have been conducted in Ethiopia on the institutional and policy implications of the two multilateral agreements on goods and services (GATT and GATS).The results of the assessments clearly showed that there are capacity gaps in the different sectors which may limit the country’s potential benefit from membership. Furthermore, the assessments have invariably underlined the need for enhancing technical knowledge and understanding of the WTO agreements and their implications for the country’s economic development in order to effectively benefit from WTO membership. However, there is still an information gap regarding the potential implications of the Agreement on the Trade-Related Aspects (the TRIPs Agreement) on the national intellectual property system of Ethiopia. The TRIPS Agreement is one of the three major constituent elements of the WTO which resulted from the Uruguay Round of Negotiations (1986-1994).  It is an agreement, which provides minimum standards of Intellectual Property Rights (IPRs) to which all WTO Members shall comply. WTO members are not only required to provide for protection of all the IPRs covered by the TRIPS Agreement but also to put in place effective enforcement mechanisms at the national level. Certainly the TRIPS Agreement is an agreement with important implications on a wide area of key public policy issues.

The constitution of Ethiopia, adopted in 1995, recognizes the right to ownership of intangible property and empowers the House of People’s Representatives and the Council of Ministers to enact laws for the protection of intellectual property rights.  In line with the provisions of the Constitution, Ethiopia has issued laws for the protection of patents and industrial designs, trademarks, copyrights and neighboring rights and new varieties of plants.  Efforts are also underway to introduce laws in the other major areas of IPRs.

The government organ in charge of IPRs is the Ethiopian Intellectual Property Office (EIPO), which was established in 2003 by Proclamation No. 320/2003. EIPO is responsible to initiate policy and legislative action in relation to IPR as well as to implement IPR related laws.

While Ethiopia has not yet ratified the major IPR treaties under the auspices of the World Intellectual Property Organization (WIPO), it is a member of the organization and has a close working relationship with this organization in the areas of capacity building, legislation development and IPR popularization.

One of the key objectives of the government of Ethiopia in relation to the WTO agreement is to facilitate the integration of the national economy into the global trading system and maximize the benefits from WTO membership for the realization of the objectives of the country’s development strategy. The international IPR architecture, spearheaded the TRIPs agreement, will obviously have impacts on the implementation of Ethiopia’s technological generation and industrialization endeavors. Therefore, it is necessary to undertake a study on the institutional and policy measures that are required to make the national IPR system compatible with the TRIPs Agreement and their implications on the efforts to build national technological capability, promote the growth of the creative industries and enhance a competitive environment between enterprises.

This study is supported by the European Union (EU) and UNDP in the context of the portion of the trade capacity building project that is being managed by UNDP in partnership with the Ministry of Trade and Industry (MOTI). 

II.       Objectives of the Study

The objectives of the study are to:

• Assess the potential impact of implementing the TRIPS Agreement on the transfer of foreign technology and enhancement of the domestic technological capabilities in Ethiopia.
•  Determine the extent to which the TRIPs agreement hinders or promotes the growth of  creative industries in Ethiopia
• Identify the TRIPS flexibilities that may be used by Ethiopia to promote its public policy objectives in term of its industrial development;
• Identify the national institutional and human resource gaps and challenges in enforcement measures in the area of IPRs;

• Generate enhanced information to assist policy makers in their decision on the use of intellectual property as a strategic tool for development in the era of WTO

III.       Scope of the Study

The study will review the following areas:

1.      The existing legal and administrative framework for the protection and enforcement of IPRs in Ethiopia and the gaps for compliance with the TRIPS requirements.

2.      The potential impact of implementing the TRIPS Agreement on domestic creativity and technological innovation as well as on Ethiopia’s foreign trade and competitive positions.  (Risks, costs and benefits will also be assessed).

3.      The extent to which Ethiopia could benefit from the transitional provisions of TRIPS and the Doha Declaration on the TRIPS Agreement relating to Public Health.

4.      The national expertise and institutional capacity to analyze benefits and costs as well as to implement appropriate measures in compliance with WTO agreements. (Particular attention should be paid to the capacity of institutions such as police, prosecution service and courts to properly enforce IP laws.)

5.      Ethiopia’s potential of traditional knowledge and folklore by showing how to preserve and protect them at national and international level against misappropriation and misuse.  (The obstacles that hamper the proper exploitation of this wealth shall be indicated, recommendations of their appropriate utilization and promotion shall be proposed).

IV.       Expected Output

 The report of the study should include the following elements:

1. A discussion of the basic principles and rules of the TRIPS Agreement.
2. An examination of Ethiopia’s IPR regime including its laws and enforcement capacity of institutions.
3. A discussion on how best to implement the TRIPS Agreement in Ethiopia with particular reference to the use of transition periods.
4. A proposed set of short, medium and long term policy/legislative changes needed to implement the above recommendations

V.       Recommendations for Action Plan:

 Following identification of key risks, costs and benefits, the consultants should provide recommendations on policies, institutional reforms, capacity needs and incentives, which may maximize benefits while minimizing costs. These recommendations will constitute an Action Plan to prepare Ethiopia for compliance with TRIPS, outlining negotiating commitments in the TRIPS regime, contributing to fulfillment of Ethiopia’s economic development goals. The recommendation should consider how a reform of Ethiopia’s IP regime could be undertaken as part of the overall economic reform program. Given the importance of establishing adequate macroeconomic and regulatory policies before addressing the negotiation demands of WTO members in the TRIPS regime, the consultants should consider how to address the macroeconomic and regulatory challenges.

VI.       Methodology

Consultancy firms that are interested in undertaking this study will propose detailed methodologies on how they will go about to meet the above listed study objectives.  The following are some suggestions.

·         Use of brief questionnaire and in-depth interviews with key stakeholders both in governmental institutions and private sectors such as the Ethiopian Intellectual Property Office, Ethiopian Revenue and Customs Authority, Ministry of Justice, Federal courts, Federal Police Commission, Ministry of Trade and Industry, Ministry of Science and Technology, Ethiopian Environmental Protection Authority, Ethiopian Agricultural Research Institute, Institute of Biodiversity Conservation, Addis Ababa University (Faculty of Law), Ethiopian Inventors’ Association, Ethiopian Authors' Association, Ethiopian Audiovisual  Producers Association and the Chambers of Commerce and Sectoral Associations.

·          The consultants shall collect and review literature related to the IPR sector.  They should also review current developments in the international IPR architecture with special emphasis to the WTO system.

·         The consultants shall collect data from the Ethiopian Intellectual Property Office, other relevant institutions, IP Associations and analyze the data.  Existing proclamations, regulations and directives on intellectual property rights will also be examined thoroughly.

The experiences of some recently acceded LDCs will be assessed and compared with the IPR regime of Ethiopia. 

VII.       Reporting Arrangements

·         The consultants will submit an inception report, a mid-term report and a final draft report for comments to both the Ministry of Trade and Industry (MoTI) and UNDP in Addis Ababa, Ethiopia. The inception report will provide details of the methodological approach to be used by the consultants to undertake the study.

·         The Foreign Trade Relations Department of MoTI in partnership with UNDP will coordinate the study and keep abreast of the mission’s activities during the consultants stay.  The study team will work closely with the Foreign Trade Relations Department and submit all draft reports to this Department and UNDP; and 

• Once the final draft of the report is produced, the document will be shared with relevant stakeholders for comments. The study will be validated at a national workshop in order to obtain feedbacks on the study;
• Only after incorporating and/or responding to all the comments at the validation       workshop shall the consultants produce and submit a final report to MoTI and UNDP.

VIII.       Qualifications/Experiences of the Consultants

It is required that the consultancy firm presents experts having the following minimum qualifications well elaborated in the study technical proposal along with all the relevant CVs .

• Masters degree, in economics, trade law and/or development studies or related fields.

·         Evidence of depth and substantive knowledge of WTO related issues, particularly the TRIPS Agreement.  Furthermore the consultants should have comprehensive understanding of the social and economic situation of Ethiopia and sound knowledge of the IPR related sectors and policies;

·         Demonstrated capacity in economic research analysis (both quantitative and qualitative), and previous experiences in conducting similar studies would-be desirable;

·         Evidence of the ability to deliver high quality research products on time and within budget;

·         Evidence of national and international networking capacity for the proposed study

·         Good interpersonal skills, ability to work well in international, multi-disciplinary teams, a flexible approach and the ability to multi-task and meet tight deadlines.

• Demonstrated familiarity with the social and economic conditions of the country;
• Proven ability to write in a clear and concise manner and to communicate orally

IX.       Duration: The total duration of the study will be four months. 

X.       Evaluation criteria

Technical proposals will be rated as per the following matrix. A firm will have to score a minimum of 70% to be considered for the next step. Financial evaluation will be conducted for the qualified and responsive technical proposals (i.e.70% and above ). Financial proposal and technical proposal will constitute 30% and 70% respectively. The responsive and qualified firm with the highest combined rate will be issued a contract.

XI.       Submission of technical & financial proposals

 The technical proposal should have as annexes (i)CVs of the consultants expected to undertake the work; (ii) A list of related consultancies /contracts carried out satisfactorily, supported by credentials; (iii) A confirmation of the capacity to deliver the completed work by the set timeframe; (iv) Detailed list of capacity in terms of human and material resources of the organization is needed; (v) Proposed methodology of the study, and (vi) Copies of professional and trade licenses of the consultancy firm.

The financial proposal-cross-references to the sealed technical bid should be a financial bid, giving the overall cost (expenses & fees) but with as much breakdown of costs as possible to allow analysis of reasonableness of the offer.

Interested firms should submit their technical and financial proposals in separate sealed envelopes to the following address no later than 2 April 2010.

UNDP Ethiopia
Procurement Specialist
ECA Compound Old Buld.
Vacancy No: RFP/011/2010
Fax: 251 11 5514599 / 5515147
P. O. Box 5580, Addis Ababa
Ethiopia