Minutes - TRIPS Council - View details of the intervention/statement

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1. Meeting date

2. Chairperson

H.E. Ambassador Dr. Walter Werner

3. Intervention by

Brazil

4. Agenda item

7   NON-VIOLATION AND SITUATION COMPLAINTS

5. Statement/summary of statement

155.   The debate on the applicability of non-violation complaints to the TRIPS Agreement has been part of the Council agenda for many years and our delegation would also like to recall the importance of addressing the concerns raised by Members more than fifteen years ago in document IP/C/W/385. Since the last Ministerial Conference, in light of the mandate given to this Council, our delegation has continued its work on the study of non-violation and situation complaints, despite the fact that demandeur countries have not provided us with information about scope and modalities. Having carefully analysed statements made in past sessions of the Council by proponents of applying NVSCs to TRIPS, we continue to hold the view that the dispute settlement mechanism as currently applied to the TRIPS Agreement is sufficient to guarantee effective and adequate protection of intellectual property rights. Claims that the availability of NVSCs would prevent Members from evading their TRIPS obligations are not supported by evidence, and proponents have not once provided a concrete example of the envisaged use of NVSC. 156.   In fact, the extension of NVSC to the TRIPS Agreement could pose an additional and unnecessary burden on the dispute settlement body. The DSB is already in a worrisome state caused by one country blocking the launch of the process to fill the vacancies of the Appellate Body. 157.   To automatically apply GATT cases without addressing TRIPS specificities – and there are many – does not seem the best way ahead. Any discussion about scope and modalities should ensure that the policy space of Members to define their level of protection be preserved, in accordance with TRIPS Article 1.1. Brazil remains attentive to any proposal that may be brought by proponents.

6. Documents referred to in intervention

7. Conclusion

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

8. Summary of the agenda item (if available)

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.

9. Document symbol and date of distribution

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