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

H.E. Ambassador Lundeg Purevsuren
225.   We would like to thank you for your consultations in this matter. Members remain divided on the question of whether non-violation and situation complaints should apply to the TRIPS Agreement at all, or whether the application of these types of complaints should be subject to certain modalities. 226.   South Africa is not a proponent for the application of non-violation and situation complaints to the TRIPS Agreement. It may also be useful for the proponents of the NVC remedy to clarify what situations they wish to avoid by having a non-violation remedy available under the TRIPS Agreement. We would be concerned with any NVC remedy that would have the effect of expanding existing TRIPS obligations or reduce flexibilities that Members currently have. In this regard, South Africa has been proactive in reaching out to various delegation to assess Members readiness to engage substantively on the various options available to address NVCs. There seems to still be a divergence in the approach and positions that delegations hold. My delegation would like to point out that in recent times Members have agreed to the non-application of NVCs to Article 31bis of the TRIPS Agreement. 227.   Article 31bis paragraph 4 of the TRIPS Agreement states the following: "Members shall not challenge any measures taken in conformity with the provisions of this Article and the Annex to this Agreement under subparagraph 1(b) and 1(c) of Article XXIII of GATT 1994." 228.   We heard certain Members raise a link between the NVC and e-commerce moratorium. My delegation would like to put on record that we do not see any linkage between the two moratoria. Each moratorium should be judged on its own merit and as a result we would disagree that the two moratoria should be automatically linked. Furthermore, we note the proposal put forward in the General Council (13 and 14 October 2019), as referenced in document WT/GC/W/783. As pointed out by the Chair of the General Council, the TRIPS Council is competent to deal with this matter and is called to make recommendations regarding the scope and modalities to the General Council/Ministerial conference. Also, noting that, between ministerial meetings, the General Council is competent to take decisions. We hope that proponents will follow the prescribed protocol in dealing with this matter as contained in Article 64.3 of the TRIPS Agreement and subsequent ministerial practice.
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