H.E. Ambassador Xolelwa Mlumbi-Peter (South Africa)

South Africa

8 NON-VIOLATION AND SITUATION COMPLAINTS

284.   As you recalled in your introduction the TRIPS Council is called to continue its examination of the scope and modalities of non-violation and situation complaints on the basis of the General Council Decision of 10 December 2019 and, certainly, the next Ministerial date as a working hypothesis would bear reference here. Once again we would like to thank the Secretariat for the briefing session on 3 September 2020 on the history and evolution of non-violation and situation complaints, including some very useful observations by the Legal Affairs Division. South Africa has made countless interventions on this subject-matter and has indicated its willingness to cooperate with other Members. 285.   I think Brazil has alluded to the fact that we have in principle a working document with various options indicating possible scope for the application of non-violation and situation complaints, to the TRIPS Agreement, further articulating modalities which have been recognized under litigation and certainly the dispute settlement understanding, and ending with possible remedies. From that point of view, we have not formally shared this with other Members but we have reached out to especially proponents that have made the case that non-violation situation complaints should apply to the TRIPS Agreement and further to understand how these Members envisage a possible application. I think Brazil is correct in indicating that if we do not look at the margins, if we do not ensure that there is sufficient guidance to panels who may, in an abstract way, start to think about what the intentions of Members were, we leave open a scenario when non-violation situation complaints, should they ever become applicable to the TRIPS Agreement, are construed more widely and may undermine existing right, including issues around flexibilities. 286.   So from that point of view, we are ready to share this proposal more widely based on a common understanding that other Members are willing to consider this. This is of course without prejudice to our position and that position as elucidated by the African Union is, that complaints of this kind should be permanently not applicable to dispute settlement system under the TRIPS Agreement. But nonetheless, I think I also just want to point out that we had previously also suggested that it would be useful to clarify what situations Members would wish to avoid and specifically it refers to proponents for the application of non-violation and situation complaints. So which situations, these Members would seek to avoid having a non-violation remedy applicable under the TRIPS Agreement, and on the other hand, as duly pointed out by my esteem colleague, that a non-violation remedy in the TRIPS context will not be so wide as to have the effect of expanding existing TRIPS obligations. Having previously reached out to proponents and a further group of Members, we are happy to take this process further and would also be happy to share – in a without prejudice manner - the initial draft that we had discussed in 2019.

The Council so took note of the statements made and agreed to revert to the matter at its next meeting.

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