H.E. Ambassador Xolelwa Mlumbi-Peter (South Africa)

Australia

15 PROPOSAL FOR A WAIVER FROM CERTAIN PROVISIONS OF THE TRIPS AGREEMENT FOR THE PREVENTION, CONTAINMENT AND TREATMENT OF COVID-19

1116.   Australia thanks India and South Africa for their communication. 1117.   Australia recognizes the communication's concern that COVID-19 represents an unprecedented disruption to the global economy and world trade, and that the world requires rapid access to affordable medical products, including vaccines and medicines. 1118.   As Prime Minister Morrison made clear at the UN General Assembly the previous month, there is a global and moral responsibility on all countries to share a COVID-19 vaccine far and wide. Prime Minister Morrison made clear that if Australia finds a vaccine, we will share it, and the Prime Minister urged all countries to make that pledge. 1119.   To this end, Australia has committed USD 80 million to the Gavi COVAX Facility Advance market Commitment, which will improve access for 92 developing countries to safe, effective and affordable COVID-19 vaccines, and we've committed a further USD 23.2 million for a COVID-19 Vaccine Access and Health Security Programme for the Pacific and Southeast Asia; and we have also invested USD 20 million the development of COVID-19 vaccines in Australia for the greater global good and a USD 7.5 million contribution to the Coalition for Epidemic Preparedness Innovations which is supporting nine of the leading COVID-19 candidates globally. 1120.   Australia sees well-functioning and well-understood international trade and IP rules, including their flexibilities, as a necessary tool in delivering universal access to COVID-19 medical products and technologies, such as vaccines after all, the COVAX Facility is underpinned by international IP rules. 1121.   To this end, Australia cannot support the waiver of Sections 1, 4, 5 and 7 of Part II of the TRIPS Agreement at a time when we must come together to address the complex and broad-ranging challenges posed by COVID-19, this waiver could upend global supply chains, spread uncertainty and undermine international rules. 1122.   Intellectual property plays a key role in incentivising the often costly and timely development of important health products referred to in the communication. The waiver may jeopardise the private investment that has been instrumental in driving a number of vaccines towards the final stages of phase III testing. 1123.   Australia also recognizes that beyond IP rules, other trade-related measures have an important role in helping Members respond to COVID-19. To this end, we underscore the importance of domestic regulations that support the free flow of technology and vital health products, and the need to resist disproportionate export restrictions. 1124.   But Australia acknowledges that international rules must support quick, fair, predictable and implementable access arrangements to vital health products, including vaccines consistent with the concerns raised in the communication, we recognize the need for all Members to fully understand their rights and obligations under the TRIPS Agreement and its flexibilities. To this end, we would support the provision of further information to Members regarding the application of the TRIPS Agreement and its flexibilities. 1125.   It is Australia's view that a harmonious, well-functioning and clearly understood international IP framework, underpinned by the rules and flexibilities set out in the TRIPS Agreement, is crucial in ensuring Members can address the challenges posed by COVID-19 fairly and in a timely manner.

The Council so agreed.

84. The Chair said that this item had been put on the agenda at the request of India and South Africa; and a communication had been circulated. She invited India and South Africa to introduce their proposal.
85. The representatives of India and South Africa took the floor.
86. The Chair invited Members to take the floor.
87. The representatives of Kenya; Nigeria; Bangladesh; Sri Lanka; Pakistan; the Bolivarian Republic of Venezuela; Nepal; Philippines; Nicaragua; Chile; Turkey; Egypt; Indonesia; Argentina; Chad, on behalf of the LDC Group; China; Thailand; Tunisia; Tanzania, on behalf of the African Group; Ecuador; Senegal; Costa Rica; Mauritius; Colombia; El Salvador; Mali; Jamaica; the European Union; the United States of America; Switzerland; Japan; Norway; the United Kingdom; Brazil; Mozambique; Canada; Australia; Honduras; the Holy See; the World Health Organization (WHO) and the United Nations Programme on HIV/AIDS (UNAIDS) took the floor.
88. The Chair invited the Secretariat to share procedural requirements.
89. The representative of the Secretariat took the floor.
90. The representative of the United States of America took the floor.
91. The Chair noted that the proposal had been submitted to the Council on 2 October 2020. Thus, the 90-day time-period would expire on 31 December 2020. For practical purposes, this would mean that the last opportunity for the Council to adopt the report envisaged by Article IX:3 (b) of the Marrakech Agreement, was before the end-year-break in December. In order to facilitate reconvening the Council to consider a report in this regard, she proposed to keep the agenda item open. She encouraged Members to further consult on the proposal and explore possibilities to bridge the gap.
92. The Council took note of the statements made and agreed to keep the agenda item open.
93. At the Council for TRIPS' reconvened formal meeting of 10 December 2020, the Chair reported that, on 20 November and on 3 December, she had convened the Council in informal open-ended mode to take stock of developments since the suspension in October, and to continue the consideration of the agenda item in informal mode. At these meetings delegations had highlighted their common goal of providing access to high-quality, safe, efficacious and affordable vaccines and medicines for all. Delegations had also exchanged views, sought clarifications and provided information on the operation, implementation and impact of the requested waiver during these meetings.
94. The Chair said she also held consultations in the time-period between 26 November and 1 December, in order to seek delegations' views on (a) what kind of report the TRIPS Council could likely agree on at today's meeting, and (b) how substantive engagement could be further facilitated, given the importance of meaningful and focused discussions on the substance of the proposal. In these consultations she had detected an emerging agreement that the TRIPS Council should provide a communication to the General Council that would be neutral and factual, and reflect the state of play of discussions and the absence of consensus on the waiver proposal in the TRIPS Council at this time. Delegations had also seen a need to continue discussions on the matter within the TRIPS Council.
95. On the basis of these consultations, and after discussions in the informal open-ended meeting on 3 December, an agenda item for a status report on the consideration of the waiver request was put on the proposed agenda of the next General Council meeting scheduled for 1617 December. During the informal meeting of 3 December, the Chair had circulated draft language for such an oral status report with an invitation to Members to comment on this language by 7 December. On the basis of the comments that were received by the deadline, she had held further consultations on 8 and 9 December, and had circulated a revised draft status report.
96. In light of these informal meetings and consultations, she proposed the Council agree that she would deliver an oral status report to the General Council as follows:
At the meeting of the TRIPS Council on 15-16 October 2020, India and South Africa introduced document IP/C/W/669, requesting a waiver from certain provisions of the TRIPS Agreement for the prevention, containment and treatment of COVID-19, which had been circulated on 2 October 2020 and has since been co-sponsored by the delegations of Kenya, Eswatini, Pakistan, Mozambique, and Bolivia. The Council continued its discussions under that agenda item at its resumed meeting on 10 December 2020.
At those meetings, and at informal meetings on 20 November and 3 December, delegations highlighted the common goal of providing access to high-quality, safe, efficacious and affordable vaccines and medicines for all. Delegations exchanged views, sought clarifications and provided information on the waiver request but could not reach consensus. Delegations indicated a need for further discussions on the waiver request and views exchanged by delegations.
This means that the TRIPS Council has not yet completed its consideration of the waiver request and may not be able to do so within the 90 days stipulated in Article IX:3 of the Marrakesh Agreement. Therefore, the TRIPS Council will continue its consideration of the waiver request and report back to the General Council as stipulated in Article IX:3 of the Marrakesh Agreement.
97. The Council so agreed.
98. The Chair thanked all delegations, particularly those involved in the consultations, for the constructive spirit in which they had engaged in the discussions on this report. As regards the TRIPS Council's next steps, she noted that the next regular meeting is scheduled for 1011 March 2021. In order to allow for further consideration of the waiver request in the more immediate future, she proposed that the Council reserve 19 January and 4 February 2021 for meetings of the Council that could be dedicated to the discussion of the waiver request. The next regular meeting – with the usual complete agenda – would remain scheduled for 10-11 March.
99. The Council so agreed.
100. The representatives of Malaysia, Canada, Chile, Bolivia, Sri Lanka, Chad, Norway, Turkey, Singapore, Viet Nam, Eswatini, Egypt, Indonesia, the European Union, Japan, China, the United Kingdom, Oman, Mauritius, Bolivarian Republic of Venezuela, Ukraine, the United States of America, Ecuador, the Republic of Korea, El Salvador, New Zealand, Mozambique, Brazil, Jamaica, India, Pakistan, Switzerland, Israel, Colombia, Bangladesh, Tanzania, on behalf of the African Group, Botswana, South Africa, Nepal and Vanuatu took the floor.

IP/C/M/96, IP/C/M/96/Add.1