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.