Ambassador Dacio Castillo (Honduras)

Brazil

6 NON-VIOLATION AND SITUATION COMPLAINTS

125. The debate on the applicability of non-violation complaints to the TRIPS Agreement has been part of this Council's agenda for many years. In order to revisit this item once again, at the outset, my delegation would like to recall the importance of addressing the concerns raised by Members for more than a decade now, in document IP/C/W/385. These concerns refer, among others, to seven issues related to the applicability of non-violation and situation complaints to the TRIPS Agreement. 126. The first issue refers to the fact that the TRIPS Agreement, unlike other WTO Agreements, is a sui generis agreement which is not designed to protect market access or the balance of tariff concessions, but rather to establish standards of IP protection, which, if abused, may even undermine market access. 127. A second concern is that non-violation and situation complaints are unnecessary to protect any balance of rights and obligations inherent in the TRIPS Agreement, as these are reflected in the Agreement's principal obligations and flexibilities, and the Agreement explicitly states in its first Article that WTO Members are not obliged to implement more extensive protection. 128. A third concern refers to non-violation and situation complaints being unnecessary to protect market-access commitments embodied in the GATT or GATS, or any other notion of a balance of concessions struck in the Uruguay Round, as these are adequately protected by those Agreements and other Annex 1 Agreements. 129. A fourth concern refers to a systemic concern. Members pointed out that non-violation and situation complaints could introduce incoherence among WTO agreements by allowing something which a WTO Member has agreed to accept in one part of the single undertaking (e.g. the GATT or the GATS) to be challenged on the basis that it could nullify or impair benefits in another area (e.g. TRIPS). 130. The fifth concern refers to the fact that non-violation and situation complaints could upset the delicate balance of rights and obligations expressed in Article 8 of the TRIPS Agreement by elevating private rights over the interests of the users of IP – both within and between countries – and over other important public policy considerations in a manner inconsistent with Article 3.2 of the Dispute Settlement Understanding. 131. A sixth concern refers to the possibility of undermining national regulatory authority and infringing sovereign rights by exposing to challenge any measure that affects IP and that could not have been foreseen at the time of the Uruguay Round. 132. The seventh concern is on the limitation on the use of the flexibilities inherent in the TRIPS Agreement to secure objectives relating to public health, nutrition, the transfer of technology and other issues of public interest in sectors of vital importance to socio-economic and technological development. 133. In the same light as many other countries, Brazil understands that the rights and obligations in the TRIPS Agreement are best performed through good faith application of its provisions, in accordance with established principles of international law recognized by the Appellate Body, and do not require recourse to the legally imprecise notion of non-violation and situation complaints. 134. Having said that, Brazil would like to stress its commitment to discussing a definitive solution to non-violation and situation complaints. 135. While Members are not capable of finding a definitive solution to the subject, we understand that the provisions on Article 64.3 do not provide a basis for their automatic application, absent agreement of Member States on scope and modalities.

The Council took note of the statements made and agreed to revert to the matter at its next meeting.

6.1. The Chairman recalled that, at its meeting in October 2013, the Council had agreed to recommend that the Ninth Session of the Ministerial Conference decide to extend the moratorium on TRIPS non-violation and situation complaints. Pursuant to this recommendation, Ministers had directed the TRIPS Council to continue its examination of the scope and modalities for complaints of the types provided for under subparagraphs 1(b) and 1(c) of Article XXIII of GATT 1994 and make recommendations to their next Session, which they had decided to hold in 2015. It had been agreed that, in the meantime, Members would not initiate such complaints under the TRIPS Agreement (WT/L/906).

6.2. At the Council's meeting in October 2013, the Chair had reported on the consultations on TRIPS non-violation and situation complaints that he had held in preparation of that meeting. At that time, he had reported that, at his open-ended informal meetings, delegations had been in agreement on a Council recommendation to the Ministerial Conference that it extend the moratorium on TRIPS non-violation and situation complaints until the next Ministerial Conference.

6.3. At the same time, Members had indicated readiness to engage in early 2014 in intensified work on the examination of the scope and modalities for such complaints with the intent of finding a way out of the current cycle of extending the non-violation moratorium from one Ministerial Conference to the next. Furthermore, a number of delegations had said that the briefing that the Secretariat had organized in October 2012 to provide factual background information on such complaints had been useful and hoped that, since there had been turnover among delegations, the Secretariat would hold another such a briefing to enable them to engage in substantive discussions on the matter. At the Council's October meeting, he had also indicated that he intended to consult with delegations in early 2014 on how to organize the Council's intensified work on this matter.

6.4. Ambassador Suescum had informed the Chair that, accordingly, he had held two open-ended informal meetings earlier in February to consult with delegations on how to organize the Council's intensified work on TRIPS non-violation and situation complaints, encouraging them to come prepared with concrete ideas on how to move forward the work. As to any concrete ideas, one delegation had said that it was meeting bilaterally with other delegations and hoped to be in a position to share such ideas at the present meeting. Some delegations had underlined the need for engagement without offering any specific suggestions. Some other delegations had said that they wished to see similar engagement also on other issues.

6.5. In response to the request that the Secretariat hold another briefing on non-violation and situation complaints, the Secretariat had held a briefing on this topic in the morning of 24 February. Its purpose had been to provide factual background information on the topic to delegations in order to enable them to engage in substantive discussions and to facilitate the Council's consideration of this matter.

6.6. The representatives of the United States, Brazil, the Bolivarian Republic of Venezuela, China, South Africa, Cuba, Canada, India, Ecuador, Pakistan, Japan, Switzerland, the European Union, Bangladesh, Argentina, Mexico, Peru, Korea, Nigeria on behalf of the African Group, Angola on behalf of the LDC Group and the Bolivarian Republic of Venezuela took the floor under this agenda item.

6.7. The Council took note of the statements made and agreed to revert to the matter at its next meeting.

IP/C/M/75, IP/C/M/75/Add.1