H.E. Ambassador Dr Walter Werner

Brazil

7 NON-VIOLATION AND SITUATION COMPLAINTS

151.   The debate on the applicability of non-violation complaints to the TRIPS Agreement has been part of the Council's 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 intensified 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. It is up to demandeurs to propose scope and modalities of NVSCs, as all other countries have reiterated their view that NVSC should not apply to the TRIPS, thus there is no need to discuss scope and modalities. To automatically apply GATT cases without addressing TRIPS specificities – and they are many – does not seem the best way ahead. Brazil remains attentive to any proposal that may be brought by them. We have just heard some information provided by Switzerland, which we thank and we will carefully analyse and discuss bilaterally. 152.   Based on information available, however, we remain unconvinced of the necessity to provide NVSC in the TRIPS Agreement. 153.   Protection against evasion of obligations is fully ensured by the ordinary dispute process available under Article 64.1, which proved itself adequate to guarantee compliance with the provisions of the TRIPS Agreement. It has been invoked and used with great success in the past and no concrete case of the necessity for extending the mechanism to NVSC was presented so far.

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