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

H.E. Ambassador Lundeg Purevsuren
United States of America
7 NON-VIOLATION AND SITUATION COMPLAINTS

229.   The United States' position on this issue remains unchanged. We reiterate our support for allowing the moratorium to expire so that Members may bring non-violation nullification or impairment (NVNI) complaints in the future, as appropriate. 230.   In the previous meetings of the TRIPS Council, some Members raised concerns over the application of NVNI complaints to the TRIPS Agreement. We believe that while valid questions have arisen, they are fully and adequately answered by the text of the TRIPS Agreement itself and further clarified through GATT and WTO adjudication, as we have enumerated in our communication to the TRIPS Council, which was circulated to Members as document IP/C/W/599, as well as in our recent interventions. 231.   The United States has provided detailed and extensive analysis in each of our statements under this item over the past several years. We have explained the legal basis for such claims in the GATT and TRIPS Agreement texts, the panel and Appellate Body jurisprudence involving NVNI disputes, the extensive safeguards that exist to protect Members rights and obligations under the TRIPS Agreement, and concrete descriptions regarding how such disputes would work in practice. 232.   As we have detailed in past interventions, NVNI claims have a long lineage in the WTO and in international trade law generally. The applicability of such claims to the WTO Agreements is the rule; their non-application is the exception. The TRIPS Agreement moratorium is the exception. 233.   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 moratorium so that complaints of this type may be applicable to the TRIPS Agreement. 234.   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 proposals from Members wishing to further examine the scope and modalities for complaints of these types. 

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