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

H.E. Ambassador Dr Walter Werner
United States of America
130.   The United States' position on this issue remains unchanged and while we recognize that the decision by Ministers in December places a moratorium on Members bringing non-violation nullification and impairment (NVNI) complaints under TRIPS for a period of two years, we reiterate our support for allowing the current moratorium to expire so that Members may bring NVNI complaints in the future, as appropriate. 131.   The language of Articles 64.1 and 64.2 explicitly states that, after five years, complaints under Article XXIII: 1(b) and (c) of GATT would be available under the Agreement. Therefore, the United States is of the view that these drafters intended for non-violation complaints to constitute an additional obligation to Members that is not expressed elsewhere in the provisions of the Agreement. Disallowing Members from having recourse to this remedy is the action that upsets this balance. 132.   We also disagree with some Members' assertion that NVNI claims could undermine regulatory authority and limit the ability of a Member to undertake policies to promote certain public policy objectives. 133.   The United States is of the view that the availability of non-violation complaints will protect Members from evasions of obligations under the TRIPS Agreement while preserving the ability of any Member to implement legitimate social, economic development, health, environmental, and cultural policies. 134.   Further, non-violation complaints will only be successful if a measure could not have been foreseen when the Uruguay Round negotiations were underway. Because there are a number of ways to implement social and cultural policy goals, a Member may take this element of non-violation complaints into consideration when crafting measures to protect these goals. 135.   Finally, WTO adjudicatory bodies will continue to be bound by Article 3.2 of the DSU, which clearly states that "recommendations and rulings of the Dispute Settlement Body cannot add or diminish the rights and obligations provided in the covered agreements." Furthermore, past GATT and WTO rulings provide sufficient guidance on the scope of such complaints, which ensure that the scope of any non-violation complaint would have to be precisely drawn and clearly supported with detailed justification. 136.   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. 137.   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.
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