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

H.E. Ambassador Xolelwa Mlumbi-Peter
277.   There is an extensive consultation process ongoing in the Brazilian Government on the issue of Non-Violation and Situation Complaints applied to the TRIPS Agreement. Several government agencies are being consulted, so that we can have as broad a perspective as possible on the matter. As we all know, jurisprudence regarding NVSC applied to IP is scarce. So, we are navigating uncharted waters. 278.   In the past decade or so, we have seen a growing number of NVSC provisions applied to IP in regional and bilateral trade agreements. However, we have not seen sufficient litigation referring to these provisions. The lack of concrete cases leads us to an assessment exercise that is essentially abstract in nature. 279.   In 2019, South Africa has kindly shared with us a discussion paper on the issue of NVSCs. The paper gives important hints on possible avenues regarding scope and modalities, based on contributions made by Members in the discussions over the last two decades. The alternatives presented in this document, among others, are being considered in our internal assessment. 280.   In a scenario where the moratorium expired, it would be important for us to guarantee that guidelines had been previously agreed by Members for the application of NVSCs to the TRIPS Agreement, thus avoiding a situation where panels (and the Appellate Body) had to fill the normative gap. 281.   For us, any solution to this issue must have the Members' footprint.
40. 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."
41. 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.
42. There had also been a suggestion that one Member might be developing a submission. She encouraged delegations to table submissions that might assist to shape the discussion resulting in a meaningful outcome at MC12. Also, the LDC Group had suggested that the Chair should hold dedicated informal discussions on this issue to facilitate engagement.
43. Since the July 2020 meeting, the Secretariat had also held a Briefing Session on TRIPS nonviolation and situation complaints. She invited the Secretariat to brief Members.
44. The representative of the Secretariat took the floor.
45. The Chair invited delegations to share their views on how the Council should approach TRIPS non-violation discussions between now and MC12, specifically where delegations thought there were areas of commonality, as the discussion had been evolving for some time, and areas that required further clarifications among Members so as to have focussed discussions.
46. The representatives of Brazil; Tanzania, on behalf of the African Group; South Africa; Bangladesh; Egypt; Nigeria; Chile; India; Jamaica, on behalf of the ACP Group; Argentina; Thailand; China; Indonesia; Switzerland; the United States of America; the European Union; Canada; Chinese Taipei; South Africa; Ecuador; and the Republic of Korea took the floor.
47. The Chair noted that she would send a communication with a view to facilitate informal consultations with Members.
48. The Council so took note of the statements made and agreed to revert to the matter at its next meeting.
IP/C/M/96, IP/C/M/96/Add.1