H.E. Ambassador Dr Walter Werner

India

7 NON-VIOLATION AND SITUATION COMPLAINTS

125.   India's position on the issue of non-violation complaints under the TRIPS Agreement remains unchanged. Serious concerns remain on the debilitating impact, non-violation complaints in TRIPS can have on the regulatory policy space of Members, on TRIPS flexibilities as well as increasing the complexity in interpreting the TRIPS provisions. It can not only have a chilling effect on Member's exercise of their IP regimes but also severely restrain ability of Members to achieve other public policy objectives. 126.   The absence of non-violation complaints in the TRIPS context does not in any manner threaten or dilute the enforceability of TRIPS-related rights and obligations. On the contrary, the application of non-violation complaints in the TRIPS context could potentially present issues relating to rights of IP right holders versus the legitimate exercise of regulatory policy choice by governments. Introducing non-violation and situation complaints into the TRIPS Agreement is unnecessary and inconsistent with the interests of the WTO Members. Any benefits arising from the Agreement can be adequately protected by applying the text of the Agreement in accordance with accepted principles of international law, and without introducing the legally uncertain notion of non-violation and situation complaints. 127.   We look forward to work with like-minded Members in making non-violation complaints inapplicable to TRIPS. We also wish to reiterate that until there is a consensus on the scope and modalities of the applicability of NVCs to TRIPS, NVCs will not apply to the TRIPS Agreement.

22.   The Chair recalled that, at the Eleventh Ministerial Conference (MC11), Ministers had renewed their instruction to the TRIPS Council to continue its examination of the scope and modalities" for non-violation and situation complaints and to make recommendations to MC12". This was in line with the original mandate in Article 64.3 of the TRIPS Agreement, which required such recommendations to be submitted in 1999. This issue had thus been with the TRIPS Council for almost two decades.
23.   At the Council's meeting in February, there had been some signs that seemed to indicate certain delegations' readiness to engage in a constructive discussion of scope and modalities in case non-violation and situation complaints were to apply to TRIPS. This had also been confirmed during the consultations that took place the previous week. Therefore, he was interested to hear from delegations whether they had any suggestions regarding possible ways for the Council to ensure a meaningful debate that would ultimately fulfil the Ministers' instruction to examine the matter, and enable the Council to prepare the ground for the adoption of recommendations to the Ministerial Conference envisaged for next year. He was aware of the challenge, as it required delegations to reconsider their well-known and longstanding positions. He relied on delegations to come up with concrete proposals that would permit the Council to move beyond positions of principle and engage substantively in the examination of possible scope and modalities for such complaints. He invited delegations to share their ideas on any new approaches for the Council to take this issue forward.
24.   The representatives of South Africa; India; Benin, on behalf of the LDC Group; the United States; Ecuador; Bangladesh; Switzerland; Brazil; the Republic of Korea; China; Argentina; and Canada took the floor.
25.   The Council took note of the statements made and agreed to revert to the matter at its next meeting.

IP/C/M/89, IP/C/M/89/Add.1