Ambassador Al-Otaibi (Kingdom of Saudi-Arabia)

Bangladesh on behalf of Least-developed countries

6 NON-VIOLATION AND SITUATION COMPLAINTS

96. LDCs are concerned that Non-violation and situation complaints have every possibility to pose unnecessary problems to LDCs which can be otherwise available if we do not implement this provision under TRIPS. In this respect, we support the proposal IP/C/W/385/Rev.1 submitted by different developing countries. Our fundamental understanding is that TRIPS is not a market access agreement. The TRIPS Agreement was designed in a manner which only provides the 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 a minimum level of protection and flexibility with a view to achieve the socio-economic objectives. Most of the IP issues are actually owned by individuals or business concerns, instead of being owned by the State. Therefore, to our best judgement, drawing any parallelism in terms of non-violation and situation complaints with other WTO Agreements is not compatible with the context of TRIPS. Consequently, we do not see any scope of non-violation and situation complaints to be applicable 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. So from the systemic point of view, non-violation and situation complaints will infuse huge legal uncertainty in the total system and the LDCs could be the worse victim of any abuse or misuse of the mechanism. Hence the LDCs support the permanent deletion of this provision from the TRIPS Agreement and until that time we should continue the current moratorium.

The Council took note of the statements made and so agreed.

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.

6.2. He recalled that Members had discussed the matter at the three meetings that the Council had held in the course of last year, as well as at its last meeting in February when the Council again had agreed to revert to this matter at the present meeting. In particular, a communication on "Non-Violation Complaints under the TRIPS Agreement" that had been 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 last two meetings.

6.3. Since its last meeting in February, the Council had received a revision of a communication on "Non-Violation and Situation Nullification or Impairment Under the TRIPS Agreement" that had been circulated on 30 October 2002. The revised submission (circulated in document IP/C/W/385/Rev.1) was co-sponsored by a number of TRIPS Council Members (Argentina, the Plurinational State of Bolivia, Brazil, China, Colombia, Cuba, Ecuador, Egypt, India, Indonesia, Kenya, Malaysia, Pakistan, Peru, the Russian Federation, Sri Lanka and the Bolivarian Republic of Venezuela).

6.4. He said that the Council was mandated to provide its recommendations on scope and modalities to the Nairobi Ministerial Conference; the Council's meeting in October would therefore be the last scheduled opportunity to conclude these recommendations. He therefore urged delegations to provide guidance on how the Council could conclude its substantive work on this matter, which had been originally mandated in the TRIPS Agreement for the Council to conclude in 1999.

6.5. The representatives of Brazil; Bangladesh on behalf of the LDC Group; Ecuador; Argentina; India; South Africa; Colombia; Cuba; the Bolivarian Republic of Venezuela; Lesotho on behalf of the Africa Group; Chile; Switzerland; Peru; Nepal; Indonesia; Pakistan; China; the Republic of Korea; Norway; Tanzania; the Russian Federation; Egypt; Japan; Chinese Taipei; Uruguay; Hong Kong, China; Canada; the United States and Barbados on behalf of the ACP Group took the floor.

6.6. The Chairman recalled that there was only one more formal meeting of the Council left to respond to the instruction by Ministers that draft recommendations be prepared by the next Ministerial Conference. This should be of particular concern to delegations, given that there were still no concrete proposals on the table as to how the Council might prepare the recommendations. He therefore suggested that the Chairman be requested to hold consultations before the matter would be raised again at the next meeting with a view to enabling the Council to agree on its recommendation to the Nairobi Ministerial Conference at that meeting.

6.7. The Council took note of the statements made and so agreed.

IP/C/M/79, IP/C/M/79/Add.1