120. During the Uruguay Round, when WTO Members agreed to incorporate the GATT 1947 into the WTO Agreement, they made non-violation and situation complaints, as contained in GATT Article XXIII:1(b) and (c), available with respect to the agreements covered by the DSU. The only current exception is the TRIPS Agreement. In Article 64.2 of the TRIPS Agreement, Members agreed that the DSU would not apply to the TRIPS Agreement for a period of five years after the entry into force of the DSU. In Article 64.3 of the TRIPS Agreement, Members further agreed that during this period the TRIPS Council would examine the scope and modalities for these complaints. This moratorium has been extended eight times, most recently in a Ministerial Decision at the 11th Ministerial Conference in Buenos Aires, Argentina in 2017. In this Decision, Members agreed to maintain the moratorium and directed the TRIPS Council to continue its examination of the complaints. The TRIPS Council was also directed to make recommendations to the next Ministerial Conference, which will be held in December 2019.
121. The non-violation remedy is an "exceptional" remedy (Panel Report, Japan – Film, para. 10.37). Non-violation complaints have been extremely rare under both the GATT and the WTO. Under the GATT 1947, working parties and panels considered only eight cases involving non-violation complaints. Since the establishment of the WTO, only three panels, and the Appellate Body in one dispute, have examined non-violation complaints in any detail (Panel Reports, Japan – Film; Korea –Procurement; EC –Asbestos; Appellate Body Report, EC –Asbestos). These figures are even more remarkable when placed in a historical context: out of 132 adopted and unadopted GATT Panel and Working Party reports, only eight involved non-violation complaints, while out of more than 200 adopted WTO panel reports, just three made findings on non-violation complaints. It is also noteworthy that not all of these non-violation complaints were successful. This experience with non-violation complaints in GATT/WTO jurisprudence suggests that the evolution of the multilateral trading system, and the expansion in the provisions of WTO Agreements regulating non-tariff measures, may have had the effect of making non-violation complaints largely redundant as a remedy.
122. This delegation does not suggest that there is no further scope for discussion of this issue. The proponents of the application of non-violation complaints under the TRIPS Agreement have not provided concrete examples of the kind of scenarios under which an otherwise TRIPS-consistent measure would impair or nullify benefits beyond those arising from the obligations set out in the Agreement. Thus, it may be useful to clarify what situations proponent Members wish to avoid by having a non-violation remedy available under the TRIPS Agreement and, on the other hand, to ensure that a non-violation remedy in the TRIPS context would not be so broad as to have the effect of expanding the existing TRIPS obligations.
123. Perhaps 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. There seems 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. As non-violation complaints relate to measures that are otherwise legal, 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.
124. This delegation stands ready to discuss this issue further with any Member that may have an interest to do so.
