Minutes - TRIPS Council - View details of the intervention/statement

Ambassador Eduardo Pérez Motta (Mexico)
280. The representative of Argentina said that, as one of the co-sponsors of Peru's paper, his delegation shared the views expressed by Peru. Non-violation and situation complaints were inherent to agreements where there was an exchange of concessions and where the parties reciprocally assumed obligations which were directly linked to market access. In that context, concessions agreed to in the case of GATT 1994 could be nullified or impaired by non-tariff measures. However, the TRIPS Agreement was not one of those market access agreements. The typical effect of intellectual property rights was to avoid having third parties enter the market or engage in trade without the consent of the IP right holder. Furthermore, market access issues concerned products and not rights. In respect of an agreement which contained rules and disciplines and where there was an agreement to observe such rules and disciplines, it was not possible to nullify a benefit without committing an infringement of the rule agreed to. In respect of this type of agreement, such as the TRIPS Agreement, there could be no nullification if there was no violation or infringement. The possibility of a non-violation or situation complaint in a situation where there was no violation would give rise to uncertainty as to the legality of governmental measures which a Member might legitimately adopt. It would also open up the possibility of such measures, even when they were legal and legitimate, being called into questions by other Members. Furthermore, non-violation and situation complaints would upset the balance of rights and obligations which existed under the TRIPS Agreement. Therefore, his delegation supported the proposal contained in paragraph 6 of Peru's paper.