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

H.E. Ambassador Dr. Walter Werner
United States of America
75.   The United States' position on this issue remains unchanged. We reiterate our support for allowing the current moratorium to expire so that Members may bring NVNI complaints in the future, as appropriate. 76.   In the previous TRIPS Council meeting, some Members raised concerns over the application of NVNI complaints to the TRIPS Agreement. We believe that while valid questions have arisen, they are fully and adequately answered by the text of the TRIPS Agreement itself and further clarified through GATT and WTO adjudication, as we have enumerated in our communication to the TRIPS Council, which was circulated to Members as IP/C/W/599. 77.   The United States has provided detailed and extensive analysis in each of our statements under this item over the past several years. We have explained the legal basis for such claims in the GATT and TRIPS Agreement texts, the panel and Appellate Body jurisprudence involving NVNI disputes, the extensive safeguards that exist to protect Members rights and obligations under the TRIPS Agreement, and concrete descriptions regarding how such disputes would work in practice. 78.   As we have detailed in past interventions, NVNI claims have a long lineage in the WTO and in international trade law generally. The applicability of such claims to the WTO Agreements is the rule; their non-application is the exception. The TRIPS Agreement moratorium is the exception. 79.   We continue to believe that WTO Members are being deprived of an important tool to enforce their rights under the TRIPS Agreement, which is why we support the expiration of the current moratorium so that complaints of this type may be applicable to the TRIPS Agreement. 80.   While we remain of the view that the text of the WTO Agreements and dispute settlement rulings provide Members with sufficient guidance on the application of NVNI disputes to the TRIPS Agreement, the United States remains open to considering specific proposal from Members wishing to further examine the scope and modalities for complaints of these types.
17.   The Chair recalled that Article 64.3 of the TRIPS Agreement contained the initial mandate that required the submission recommendations on scope and modalities for non-violation and situation complaints to the Ministerial Conference in 1999. 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 the Twelfth Ministerial Conference (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.
18.   There had been some encouraging signs during recent meetings. A number of delegations had indicated their readiness to engage in a constructive discussion on scope and modalities in case nonviolation and situation complaints were to apply to TRIPS. Also, at the Council's meetings in June and November 2018, some delegations had given examples of what such modalities could look like. He noted that there were barely ten months left until the December 2019 deadline. Therefore, it was important that discussions start to focus on concrete suggestions on the recommendation that the Council should prepare for the next Ministerial Conference. As MC12 was also not far away, work to get there needed to intensify as of now.
19.   The Chair said that, while the TRIPS Council was the best forum to discuss these issues, the Chair would also be available to assist delegations, including through informal consultations among interested delegations or individual discussions.
20.   The representatives of South Africa, India, the United States of America, Brazil, Ecuador, the Russian Federation, Switzerland, Argentina, Chinese Taipei, Canada and China took the floor.
21.   The Council took note of the statements made and agreed to revert to the matter at its next meeting.
IP/C/M/91, IP/C/M/91/Add.1, IP/C/M/91/Corr.1