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

H.E. Ambassador Xolelwa Mlumbi-Peter
216.   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. These complaints can not only have a chilling effect on Member's exercise of their IP regimes but also severely restrain the ability of Members to achieve public policy objectives. 217.   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. 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. Introducing such complaints into the TRIPS Agreement is, therefore, unnecessary. 218.   India looks forward to working with like-minded Members in making non-violation complaints inapplicable to TRIPS. We also wish to reiterate that until there is a consensus on the scope and modalities of the applicability of NVCs to TRIPS, NVCs will not apply to the TRIPS Agreement. We also look forward to the proposal by Brazil.
The Council so took note of the statements made and agreed to revert to the matters at its next meeting.
26.   The Chair recalled the General Council decision of 10 December 2019, in which Members had decided to extend the Moratorium on TRIPS non-violation and situation complaints until the 12th Ministerial Conference (MC12). In line with the original mandate, that decision had instructed the TRIPS Council to "continue its examination of the scope and modalities" for such complaints "and make recommendations to the 12th Ministerial Conference."
27.   In the discussions that had taken place in December 2019, many delegations had emphasized the need for a more detailed discussion on TRIPS non-violation, so that Ministers could take a wellinformed decision on scope and modalities at MC12. Most delegations had also said that they were open to engage constructively and discuss concrete proposals for scope and modalities.
28.   Against the background of the postponement of MC12, she was hopeful that Members were willing to use the additional time available to return to a substantive discussion of the issues. She had gone over the state of discussions in her preparations for the present meeting and her impression was that a number of shared understandings regarding TRIPS non-violation could in fact be harvested from the past discussions. This might enable the Council to focus its engagement on formulating the areas of disagreement; and, thus make at least some progress in framing the questions for ministers at MC12.
29.   Some delegations had indicated their willingness to make submissions in this regard to provide a basis for constructive discussions. She encouraged those delegations to do that soon, in order to make best use of the time available. The existing positions were very well known and very clearly on the record, so there was no need to reiterate them. She invited Members to share their views on how to approach TRIPS non-violation discussions between the present meeting and MC12.
30.   The representatives of Brazil; Tanzania, on behalf of the African Group; Bangladesh; Nigeria; India; Thailand; China; Argentina; Chile; Zimbabwe; Switzerland; Canada; the United States of America; Indonesia; the European Union; and, Jamaica, on behalf of the ACP Group took the floor. The representatives of Kenya and South Africa requested that their respective statements be included in the record of the meeting.
31.   The Council so took note of the statements made and agreed to revert to the matters at its next meeting.
IP/C/M/95, IP/C/M/95/Add.1