139. As a co-sponsor of the document IP/C/W/385, we reiterate the understanding that non violation and situation complaints cannot be applied to disputes in the area of intellectual property rights. As mentioned in the last session of this Council, we have no doubt that any development that allows for this kind of complaint in the context of TRIPS would upset the delicate balance of rights and obligations in that Agreement, besides risking to cause systemic problems for the Organization.
140. Even though intellectual property rights may in some cases facilitate international trade and investment, the TRIPS Agreement is not, by any standard, a market access agreement. Any attempt to compare its nature with that of GATT or GATS is inappropriate, since there is no exchange of concessions in TRIPS, and so it would be equally inappropriate to apply the concept of non-violation and situation complaints to the area of intellectual property.
141. Furthermore, we are concerned that the application of non-violation and situation complaints to TRIPS would restrict legitimate policy space that countries have to implement national policies in several areas, particularly health, where the multilateral rules have been clear on the need to preserve the existing flexibilities. Despite the guarantees that have been mentioned in this Council before, as the one presented by Switzerland and quoted in document IP/C/W/599, the vagueness that characterizes the concept of non-violation and situation complaints cannot but raise concerns for countries to defend their policies with legal – and frequently complex - arguments. Clearly, the introduction of such concept would affect the balance that the TRIPS negotiators desired when drafted Article 7, that is, between the interests of producers and users of technological knowledge.
142. Brazil is not convinced that non-violation and situation complaints can be applied to the context of TRIPS. We believe that, rather than relying on the legally imprecise and vague notion of non-violation, a focus on the text of the Agreement, supported by other principles of international law, is preferable. In this sense, we recall that this norm can be changed only if consensus is achieved on the scope and modalities of application of this type of situation, as clearly stated in Article 64.3 of the TRIPS Agreement.
