Ambassador Mothusi Palai (Botswana)

Bangladesh on behalf of Least-developed countries

6 NON-VIOLATION AND SITUATION COMPLAINTS

130. I am taking the floor on behalf of the LDC Group. LDCs are concerned that non-violation and situation complaints may pose unnecessary problems to LDCs which can be otherwise avoidable if we do not implement this provision under TRIPS. Our fundamental understanding is that TRIPS is not a market access agreement. The TRIPS Agreement was designed in a manner which only provides minimum level of territorial protection to IP by the Members. Its operation is also unique and quite different from any other WTO agreement. While some other agreements are explicit about facilitating market access and concessions, TRIPS provides for the minimum level of protection and flexibility with a view to achieve the socio-economic objectives. Therefore, drawing any parallelism in terms of non-violation and situation complaints with other WTO agreements, to our best judgment, does not fit with the context of TRIPS. 131. Consequently we don't see any scope of non-violation and situation complaints process in a sui generis system like TRIPS as the nature and scope of obligations under the TRIPS Agreement permit Members to determine the level of protection according to their respective domestic legal system and practices. From the systemic point of view, non-violation and situation complaints will infuse huge legal uncertainty in the total system. Hence, the LDCs support a further extension of the moratorium.

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

6.1. 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 that would be held in Nairobi in December 2015. It had been agreed that, in the meantime, Members would not initiate such complaints under the TRIPS Agreement.1

6.2. Members had discussed the matter at the TRIPS Council's three meetings in 2014. In particular, a communication on "Non-Violation Complaints under the TRIPS Agreement" submitted by the United States (circulated in document IP/C/W/599) had served as the basis for an intense exchange of views at the meeting in October 2014, where the Council had agreed to revert to this matter at its next meeting. The Chairman had been in touch with some interested delegations, but they had not been in a position to report on any new developments. He invited delegations to share 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 to the next Ministerial Conference.

6.3. The representatives of United States; Bangladesh on behalf of the LDC Group; the Bolivarian Republic of Venezuela; Peru; Canada; Norway; Brazil; South Africa; China; Japan; Argentina; the Republic of Korea; Switzerland; Ecuador; Colombia; Egypt; Cuba; Chile; Chinese Taipei; Russian Federation; Nepal; India and Nepal took the floor.

6.4. The Chairman said that there were only two more formal meetings of the Council left to respond to the instruction by Ministers that draft recommendations be prepared by MC10. This should be of particular concern to delegations, given that the initial deadline for accomplishing this task was 1999 and that there were still no concrete proposals on the table as to how the Council might prepare the recommendations. Keeping the item on the agenda had not yielded any solution over the past 16 years.

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

IP/C/M/78, IP/C/M/78/Add.1