Ambassador Mothusi Palai (Botswana)

Bangladesh

7 NON-VIOLATION AND SITUATION COMPLAINTS

299. My delegation would like to express its appreciation to the United States for its contribution aimed at clarifying the concept of non-violation and situation complaints. In the last Council we made clear our position on this issue and we are still of the same view. 300. However, in addition to the specific difficulties and challenges flagged by my previous speakers, let me share some general comments on the issue. 301. Our fundamental understanding is that TRIPS is not a market access agreement. The negotiator in the Uruguay Round designed it such as to provide a minimum level of territorial protection to intellectual property for Members. Its operation is also unique and quite different from any other WTO Agreements. While some other agreements are explicit about facilitating market access and concessions, TRIPS provides for a minimum level of protection and flexibility with a view to achieving socio-economic objectives. Therefore, drawing any parallelism, to our best judgment, does not fit with the context of TRIPS. 302. As such, we do not see any scope for a non-violation and situation complaints in a sui generis system such as TRIPS, where the nature and scope of obligations allow Members to determine the level of protection according to their legal system and practices. 303. From the systemic point of view, this will infuse huge legal uncertainty in the system. Hence, we do support a further moratorium.

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

7.1. The Chairman recalled that, at the Ninth Session of the Ministerial Conference, 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 decided to hold in 2015. It was agreed that, in the meantime, Members would not initiate such complaints under the TRIPS Agreement. In the consultations preceding the Council's October 2013 recommendation to extend the moratorium and the Decision taken at the Ministerial Conference in Bali, Members had already indicated readiness to engage, in early 2014, in intensified work on the matter with the intent of finding a way out of the current cycle of extending the moratorium from one Ministerial Conference to the next.

7.2. At its meeting in February 2014, the Council had had its first discussion of the matter after the Ministerial Conference. At the following meeting in June 2014, the United States had introduced a paper entitled "Non-Violation Complaints under the TRIPS Agreement" (document IP/C/W/599).

7.3. He particularly welcomed any thoughts on how the Council could best move forward on this matter in order to be in a position to agree in a timely manner on its recommendations specifically on scope and modalities to the next Ministerial Conference or, in the absence of such thoughts, how best to proceed with this issue.

7.4. The representatives of the United States; the Bolivarian Republic of Venezuela; Brazil; India; Cuba; Ecuador; Colombia; China; Japan; Argentina; Chile; the Plurinational State of Bolivia; the Republic of Korea; Chinese Taipei; Canada; New Zealand; Bangladesh; Egypt; Switzerland; Nigeria (on behalf of the African Group); Hong Kong, China; Nepal; and Indonesia took the floor.

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

IP/C/M/77, IP/C/M/77/Add.1