28. The Chair recalled that, on 10 December 2019, the General Council had directed the TRIPS Council to continue its examination of the scope and modalities for non-violation and situation complaints (NVSCs) and to make recommendations to the 12th Ministerial Conference (MC12). It was also agreed that, in the meantime, Members would not initiate such complaints under the TRIPS Agreement. The issue had been discussed at each formal meeting of the Council, as well as at informal consultations. She had held the most recent informal consultations with a small group of the most active Members on 10 February 2021.
29. At that meeting, she had reiterated a suggestion she had already made at the Council meeting in July 2020 and had shared her impression that a number of common understandings regarding TRIPS non-violation could in fact be harvested from the past discussions among delegations. While it was clear that delegations disagreed about the merits of applying NVSCs to the TRIPS Agreement, there seemed to be a number of statements about the general nature of the remedy, the conditions for invoking NVSCs, and some elements of the scope of their application that both sides seemed to subscribe to and cite as arguments in their favour. Identifying such areas or elements of agreement regarding the nature of non-violation and situation complaints generally might help enable delegations to focus their engagement on the areas of disagreement. If the TRIPS Council was able to provide such information to MC12, this could enable ministers to determine more detailed modalities or other guidance for discussions, and thus narrow the focus of the Council's work.
30. In the consultations, she had suggested two ways how the Council could go about identifying areas of agreement on non-violation and situation complaints:
a. Delegations could be invited to identify areas or elements of agreement, which could be collected by the Secretariat, and which could form the starting point of the Council's considerations. The Council could agree on a timeframe for submission of those to the Secretariat; or
b. The Chair could identify elements of agreement, on the basis of the records of the TRIPS Council meetings, and present a list for the consideration of delegations.
31. From the reactions, her impression was that of most delegations present in the consultations could in principle support such an approach of identifying areas of agreement. Some delegations had indicated support for the second option, namely that a list of areas of agreement could be prepared by the Chair, based on the records of the Council's meetings.
32. Given that MC12 had now been scheduled to take place in the week of 28 November 2021, in Geneva, there were only eight months - and two Council meetings - left before the Council is due to report again on this issue. It was therefore important that discussions begin soon to focus on concrete suggestions for the Council's recommendation for the Ministerial.
33. She invited delegations to consider her suggestion that the Chair be invited to identify elements of agreement regarding TRIPS NVSCs, on the basis of the records of the TRIPS Council meetings and Members' submissions, and to present such a list for the consideration of Members. She emphasized that such an exercise would have no impact on Member's positions on this issue, nor would it presume any particular form of recommendation of the Council to MC12. Such a list of elements of agreement might, however, produce a new basis for discussion and thus allow the Council to illuminate Members' differences in a more concrete and precise manner.
34. As her chairmanship was concluding, she would not wish to presume the intentions of the incoming chair. However, as this was one of the most protracted issues on the Council's agenda, and in light of the limited time available until MC12, she thought it would be beneficial for her successor to be able to start operating straight away by pursuing such a concrete course of action that has already been supported by Members in the Council. She encouraged Members to support her successor in finding ways out of the deadlock that had stalled progress on this item for the last two decades.
35. The representatives of Nigeria; South Africa; Chile; India; Bangladesh; Brazil; Indonesia; the European Union; Ecuador; Cameroon; Switzerland; China; Canada; Australia; and the United States of America took the floor.
36. The Council took note of the statements made and agreed to request the incoming Chair to consult on the way forward and the approach to MC12.