Competitive reframing

Rhetorical abilities and talent in reframing can also become major tools to obtain the Тbiggest slice of the cakeУ and present a conflicting situation in a way that will favour your own interests. Putting aside the technical reframing between negotiating parties, competitive reframing is mostly used in the framework of an opinion campaign. You enlarge the debate, take it out of its strictly technical context that would be too complex for the general public, and turn it into a question of interest to public opinion. The emotional touch added to the technical subject allows to mobilize and divide much more effectively.

Your strategy will proceed in two stages:

б Weakening the position of the opponent presenting its arguments as ТfalseУ, ТunfairУ, ТinaccurateУ, Тone-sidedУ, ТimmoralУ etc;

б Presenting your position in the exactly opposite terms.

In the context of a competitive strategy, a DC can transform a technical issue by adding to it a North/South or rich countries/poor countries dimension. Public opinion starts to mobilize when the terms of the debate go beyond a mere technical issue to acquire a political and even moral dimension. In this case, a Тposition of weaknessУ has some advantages.

Box 13: How the Тlosers of the TRIPS caseУ took their revenge [73]

The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) was concluded in the context of the Uruguay Round. The stakes in protecting intellectual property were high for many big US companies, and they felt the multilateral treaties on intellectual property that existed before the Uruguay Round were meaningless. The US industry groups became increasingly frustrated with what they saw as ТpiracyУ of their intellectual property. Their effort to atract the attention of US officials and bring the issue to the GATT took several forms: they formed sectoral groupings whose first task was to work with European and Japanese private sectors to also put pressure on their governments. The group also supplied the US authorities with technical notes, proposals and background documents on intellectual property issues to help in the necessary technical preparatory work. A number of observers also noted the way the intellectual property industry presented their case as a moral issue, a battle against ТpiratesУ and ТrobbersУ. What developing countries were doing was presented as ethically objectionable, and the rhetoric was then translated into legislation. The conjunction of these efforts on various and complementary tracks contributed greatly to the inclusion of TRIPS in the GATT negotiations during the Uruguay Round, despite the opposition of most developing countries.

Interestingly, the moral issue was used the other way round some years later. Intellectual property protection remained, since it was included in the GATT and then WTO negotiations, as one of the most contentious areas in international development policy. In light of such controversies, one case became emblematic: the debate over the impact of the agreement on efforts to improve public health in the developing world. With one in ten South African citizens infected with HIV and some of the highest drug prices in the world, South Africa decided to introduce provisions in its legislation related to parallel importing of medicines, compulsory licensing (production of drugs without authorization of patent holder in serious circumstances) and generic drug substitution. The Western pharmaceutical industry responded by filing a suit in South Africa. The South African authorities, with the help of Western countriesХ civil society responded using various means. They took the issue of access to medicines to the World Health Organization (WHO) - although it was considered a trade matter - while NGOs organized media campaigns around the issue of access to essential medicines for the poor.

Organizations such as ACT-UP made statements such as Т[Al] GoreХs greed killsУ or accused him of Тmedical apartheid in South AfricaУ. At the same time, other NGOs made sure they would not attack too much the overall concept of intellectual property protection to be seen as moderate. Pharmaceutical companies and US authorities had to respond. The pharmaceutical industry made AIDS medicines available to the poorest nations at deep discounts through public-private partnerships with five UN organizations. However, they were still challenging the South African Medicines Act. The opening of the court case took place in a context where the international press was painting the industry as Тgreedy and uncaringУ. Soon after, the pharmaceutical industry withdrew its case, deeply frustrated by the press coverage of the suit, but conscious they had Тunderestimated the capacity to be made villainsУ as stated by Rick Lane, President of Bristol MeyerХs Squibb pharmaceutical company. Similarly, the US authorities dropped in June 2001 the WTO complaint they had launched against Brazil on patent protection.

Source: Williams, Lawrence and Devereaux, 2002

In the example above, civil society in developed countries felt the context had changed: the principle of Тsmaller stateУ and economic liberalization policies were not as valued as they were in the 80s, and the devastation caused by AIDS in poor countries was becoming a major concern of the public opinion in developed countries. Therefore, these NGOs understood that public opinion would be more receptive to their arguments. They launched a reframing of the debate, mirror of the reframing undertaken by the intellectual property rights defenders during the Uruguay Round. The ТpiratesУ of the 80s were leaving the ground to the Тgreedy and uncaringУ of the 90s.

The reframing, when it is well done, has the advantage of discrediting the arguments of your opponents in the long run, and making it difficult to launch a Тcounter offensiveУ in the short run. This reframing often oversimplifies the stakes, but allows you to Тmaximize your gainsУ in a competitive negotiation. The competitive reframing can also have two other objectives:

б Exaggeration of potential benefits and minimization of potential costs in ТsellingУ the agreement to internal stakeholders or negotiating partners;

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