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

United States of America

8 NON-VIOLATION AND SITUATION COMPLAINTS

313.   The United States' position on this issue remains unchanged. We reiterate our support for allowing the current moratorium to expire so that Members may bring NVNI complaints in the future, as appropriate. 314.   In the previous TRIPS Council session, some Members raised concerns over the application of NVNI complaints to the TRIPS Agreement. We believe that while valid questions have arisen, they are fully and adequately answered by the text of the TRIPS Agreement itself and further clarified through GATT and WTO adjudication, as we have enumerated in our communication to the TRIPS Council in the past as well as in our recent interventions. 315.   The United States has provided detailed and extensive analysis in each of our statements under this agenda item over the past several years. As we have detailed in past interventions, NVNI claims have a long lineage in the WTO and in international trade law generally. The applicability of such claims to the WTO Agreements is the rule; their non-application is the exception. The TRIPS Agreement moratorium is the exception. 316.   We continue to believe that WTO Members are being deprived of an important tool to enforce their rights under the TRIPS Agreement, which is why we support the expiration of the current moratorium so that complaints of this type may be applicable to the TRIPS Agreement.

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