Narrowing the Gaps in Global Disputes: the Case of Counterfeits in Kenya

This article investigates the nature and potential trajectories of global disputes. Conventional accounts of global disputes often see them as inherently open-ended so that actors can always roll back previous defeats; alternatively, path-dependent accounts emphasize the likelihood of those who prevail in early struggles to reproduce their advantaged position. Like path-dependent accounts, I argue that disputes are nested, so that the goals and possible outcomes of new disputes are bounded by the results of earlier disputes—but rather than enlarging the gap between the parties to the dispute by reproducing advantages, nested disputes, on the contrary, lead to the narrowing of positions and to lower stakes. I illustrate this argument by describing two constitutive moments in the debate over intellectual property rights in Kenya: first, the debate around the Industrial Property Act over the exceptions to intellectual property rights; second, the debate around the Anti-Counterfeit Act over whether anti-counterfeit measures should apply to medicines.