H.E. Ambassador Dr. Walter Werner

South Africa

7   NON-VIOLATION AND SITUATION COMPLAINTS

143.   The issue of modalities for non-violation and situation complaints has been discussed in the TRIPS Council for the longest time. Article 64.2 of the TRIPS Agreement imposed a moratorium on the application of such complaints to the TRIPS Agreement for a period of five years. Furthermore, Article 64.3 of the TRIPS Agreement instructed the TRIPS Council to examine the so-called scope and modalities under which such complaints could be made. It required the TRIPS Council to make recommendations to the Ministerial Conference in 1999. Since then the moratorium has been extended various times, most recently at the Ministerial Conference in Buenos Aires, Argentina (MC11) in 2017. The Ministerial Decision instructs the TRIPS Council to continue its examination of scope and modalities and to make recommendations to the next Ministerial Conference. 144.   We recall our last intervention in this house. I will briefly recall the elements of the intervention: 145.   There is already broad agreement amongst Members that non-violation complaints are of an exceptional nature to which a cautious approach should be taken. This could already constitute a modality that all Members seem to agree on. 146.   Further scope to address Article 26 of the DSU that sets out special procedures that apply in the case of successful non-violation complaints. In WTO disputes, the usual remedy, under Article 19.1 of the DSU, is the withdrawal of the WTO-inconsistent measure. Article 26.1(b) of the DSU states clearly that there is no obligation on the respondent to withdraw the measure. Rather, the respondent is required to address the nullification and impairment caused by its measure, by, for instance, offering compensation. Members may agree that compensation would be explicitly excluded as an option should non-violation claims apply to the TRIPS Agreement. 147.   There remain several other possible modalities that may be applied to non-violation and situation complaints, including some suggestions that TRIPS flexibilities should not be subject to such complaints. 148.   This delegation once again invites Members that have an interest in discussing this matter to contact us. South Africa is not a proponent of the application of draft modalities but would nonetheless have an interest to ensure that the matter is discussed.

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

25.   The Chair recalled that, at the Eleventh Ministerial Conference (MC11), 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 1994 and to make recommendations to MC12. It had also been agreed that, in the meantime, Members would not initiate such complaints under the TRIPS Agreement. At the General Council meeting of 26 July 2018, the Chair had also noted that the 2019 deadlines for the two moratoria on Electronic Commerce and on TRIPS non-violation and situation complaints would be maintained, notwithstanding the decision to hold MC12 in June 2020.
26.   At the two meetings of the TRIPS Council that had been held since MC11, there had been some encouraging signs. A number of delegations had indicated their readiness to engage in a constructive discussion on scope and modalities in case non-violation and situation complaints were to apply to TRIPS. Also, at the Council's meeting in June, some delegations had given examples of what such modalities could look like.
27.   While this would require delegations to reconsider their longstanding positions, such engagement in a constructive examination of scope and modalities would, indeed, help to move beyond the binary question of whether or not non-violation and situation complaints should apply to TRIPS at all. He invited Members to provide concrete suggestions regarding the possible way forward, particularly, if there were any developments that would permit the Council to examine scope and modalities, as instructed by Ministers, in order to prepare recommendations to the next Ministerial Conference. As MC12 was approaching, work needed to intensify. The Council was the best forum to discuss these issues. However, he was also available to assist delegations, including through informal consultations among interested delegations or individual discussions.
28.   The representatives of India, Ecuador, South Africa, Bangladesh, Egypt, Brazil, Argentina, China, Canada, Chinese Taipei, Indonesia, the United States of America, Switzerland and the Russian Federation took the floor.
29.   The Council took note of the statements made and agreed to revert to the matter at its next meeting.

IP/C/M/90, IP/C/M/90/Add.1