Ambassador Alfredo Suescum (Panama)

Bangladesh on behalf of Least-developed countries

7 NON-VIOLATION AND SITUATION COMPLAINTS

115. Thank you Mr Chairman. Like all the developing countries and LDCs, we would like to express our concerns regarding the possible adverse fall outs of these complaints. We consider them to be unnecessary and evitable. We understand that the TRIPS Agreement provides a minimum level of protection of IP and much of the flexibility rests with the domestic laws of members. Drawing any simple parallelism in terms of non-violation and situation complaints with other WTO Agreements would be wrong, as TRIPS Agreement does not deal with market access and concessions. In addition, based on the nature and scope of protection of the TRIPS Agreement, the level of protection under domestic legal systems and practices is different from member to member. An introduction of such complaints would therefore result in much legal uncertainty to the entire system. So we do not support the application of this type of complaints under the TRIPS Agreement.

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

36. The Chairman recalled that, at MC10, Ministers had directed the 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 to make recommendations to MC11 in December 2017. This instruction mirrored the original mandate in TRIPS Article 64.3. The Council had discussed this matter at its three meetings last year. The discussion had been based in part on the following documents: a communication from the United States on "Non-Violation Complaints under the TRIPS Agreement" (IP/C/W/599); a revised and updated version of "Non-Violation and Situation Nullification or Impairment Under the TRIPS Agreement" (IP/C/W/385/Rev.1) and a draft decision on non-violation and situation complaints for consideration at the forthcoming Ministerial Conference (IP/C/W/607), sponsored by a number of other Members. As indicated in document IP/C/W/385/Rev.1/Add.3, the Kyrgyz Republic had most recently joined the co-sponsors of that document.

37. The previous TRIPS Council Chair, Ambassador Mero from Tanzania, had repeatedly noted that there had not been major changes in Members' positions since the Council had first discussed this issue in the late 1990s. Recent discussions had mostly served to repeat well-known positions. Positions in this regard had hardly evolved, let alone had they explored avenues of compromise.

38. The initial deadline for accomplishing this task had been 1999. The Council had been unable to recommend a permanent solution to this issue to Ministers, after 18 years of debate in this forum. He encouraged Members to share ideas as to how the Council could work towards fulfilling the Ministers' instructions in the remaining few months, and to prepare recommendations for MC11.

39. The representatives of Brazil; China; Chinese Taipei; Bangladesh on behalf of the LDC Group; Argentina; Switzerland; the Russian Federation; Egypt; India; the United States and Nigeria on behalf of the African Group took the floor.

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

IP/C/M/85, IP/C/M/85/Add.1