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

H.E. Ambassador Xolelwa Mlumbi-Peter
248.   The possibility of bringing complaints on otherwise GATT-consistent measures was introduced into the GATT 1947 to address situations where the concessions or benefits obtained in a tariff negotiation could be easily frustrated by non-tariff measures, such as domestic subsidies, that the GATT 1947 did not regulate. As the original GATT did not require Contracting Parties to make substantive commitments on many such non-tariff measures, non-violation complaints were introduced as a remedy that could address any impairment of the benefits of tariff concessions as a result of such measures. 249.   Thus, the basic function of Article XXIII:1(b) was to protect expectations that arose out of tariff concessions negotiated by parties to the GATT. It was to ensure that a GATT Contracting Party could obtain compensation, or a right to the compensatory or retaliatory withdrawal of concessions, where another Contracting Party introduced a measure subsequent to the negotiation of a tariff concession that frustrated the achievement of those concessions. In effect, non-violation complaints are a fall-back remedy designed to prevent circumvention of GATT obligations through measures that are not themselves GATT-inconsistent. We should however note that the non-violation remedy is an "exceptional" remedy. There has been no successful recourse to the non-violation remedy in any of the WTO disputes in which Article XXIII:1(b) has been invoked. In over 70 years of the existence of multilateral trading system, reports were adopted by the GATT Contracting Parties in only the remaining three out of the eight cases. Even in those disputes in which non-violation complaints have been successful, there was agreement by the parties involved that it was an exceptional remedy to which "a cautious approach" should be taken. 250.   This experience with non-violation complaints in GATT/WTO jurisprudence suggests that the evolution of the multilateral trading system, and the expansion in the provisions of WTO Agreements regulating non-tariff measures, may have had the effect of making non-violation complaints largely redundant as a remedy. Nonetheless, my delegation is not a proponent of the application of NVSCs and the proponents of the application of such complaints under the TRIPS Agreement have not provided concrete examples of the kind of scenarios under which an otherwise TRIPS-consistent measure would impair or nullify benefits beyond those arising from the obligations set out in the Agreement. Thus, as we previously suggested, it may be useful to clarify what situations proponent Members wish to avoid by having a non-violation remedy available under the TRIPS Agreement and, on the other hand, to ensure that a non-violation remedy in the TRIPS context would not be so broad as to have the effect of expanding the existing TRIPS obligations.
31.   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