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

H.E. Ambassador Lundeg Purevsuren
196.   India's position on the issue of non-violation complaints under the TRIPS Agreement remains unchanged. Serious concerns remain on the debilitating impact that non-violation complaints in TRIPS can have on the regulatory policy space of Members and on TRIPS flexibilities, thereby 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. 197.   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. Introducing nonviolation and situation complaints into the TRIPS Agreement is unnecessary and inconsistent with the interests of the WTO Members. As such, 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, without any need for introducing the legally uncertain notion of non-violation and situation complaints. 198.   India looks forward to working with like-minded Members in making non-violation complaints inapplicable to TRIPS.
The Council so agreed.
32.   The Chair recalled that, at the 11th Ministerial Conference, in December 2017, 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 GATT 1994 and to make recommendations to the next Ministerial Conference. It was also 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 the 12th Ministerial Conference in June 2020.
33.   At the TRIPS Council's meetings held since MC11, there had been some encouraging signs. A number of delegations had indicated their readiness to engage in a constructive discussion on scope and modalities in case non-violation and situation complaints were to apply to TRIPS. Also, at the Council's meeting in June 2019, some delegations had given examples of what such modalities could look like. Since that meeting, the Chair had consulted with delegations in various formats, including at an informal meeting the previous Monday, to see whether there was any appetite to discuss a possible recommendation; however, there had been no signs of engagement at this time.
34.   The issue had also been discussed at the General Council meeting, on 16 October. At the request of Chile, Colombia, New Zealand and Panama, the General Council had considered a recommendation to extend the moratorium until the 12th Ministerial Conference in Nur-Sultan, in order "to continue discussing this issue among the WTO Members within the TRIPS Council". The cosponsors had suggested that the General Council should take such a decision at its December 2019 meeting. The Chair of the General Council had encouraged Members to engage in substantive discussions in the TRIPS Council.
35.   The Chair said that since the October meeting was the last regular TRIPS Council meeting of 2019, it would be the right moment for the Council to make a recommendation on how the Ministerial Conference should decide on TRIPS non-violation complaints. He encouraged delegations to engage in a constructive examination of scope and modalities for such complaints. A constructive discussion would help to move beyond the binary question of whether or not nonviolation and situation complaints should apply to TRIPS at all. He opened the floor for any concrete suggestions regarding the possible way forward, particularly, proposals on what a permanent solution to this issue could look like, and what recommendation the Council should make.
36.   The representatives of Chile; Bangladesh; Colombia; Thailand; Mexico; Nigeria; Panama; Indonesia; Ecuador; New Zealand; India; the Russian Federation; Canada; Brazil; Singapore; Guatemala; Norway; Argentina; the European Union; Hong Kong, China; Chinese Taipei; Plurinational State of Bolivia; Switzerland; China; South Africa; and the United States of America took the floor.
37.   The Chair noted that the Council was not yet ready to agree on a recommendation. He suggested that the agenda remain open, while he continued to consult Members. Once there was an indication that Members were in a position to reach consensus, he would reconvene the Council at short notice, so that a recommendation could be made to the General Council, and through it to the Ministerial Conference, in a timely manner.
38.   The Council so agreed.
39.   The Chair said that the last General Council meeting of 2019 was scheduled for 9-11 December. Therefore, any recommendation, which could be included in the TRIPS Council's Annual Report or its addendum, would need to be submitted to the General Council in time for that meeting. He asked delegations to bear that in mind.
IP/C/M/93, IP/C/M/93/Add.1