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

H.E. Ambassador Dagfinn Sørli (Norway)
Tanzania on behalf of African Group
7 NON-VIOLATION AND SITUATION COMPLAINTS

71.   I would like to deliver this statement on behalf of the African Group. On Non-Violation and Situation Complaints, the African Group still holds its long-standing group position that: a. The Moratorium on Non-Violation and Situation Complaints should be made permanent in the TRIPS Agreement, in order to ensure Members are not threatened to utilize flexibilities enshrined in the Agreement. b. However, should Members wish to implement the mandate stipulated in Article 64.3 of the TRIPS Agreement of examining the scope and modalities for the application of non-violation and situation complaints in dispute settlement as allowed in Articles XXIII of GATT 1994, the group remains committed to work together with other Members for amicable solution. c. Nevertheless, it is in the understanding of the group that the expiry of paragraph 2 of Article 64 of TRIPS Agreement (here referred as the moratorium), will not trigger an automatic application of Articles XXIII of GATT 1994 in the Dispute Settlement, as it is contingent to the outcome mandated in Article 64.3 of the TRIPS Agreement.

29. The Chair said the next agenda item was another longstanding issue, i.e. the examination of scope and modalities for non-violation and situation complaints, in line with the initial mandate in Article 64.3 of the TRIPS Agreement, which required recommendations to be submitted to the Ministerial Conference in 1999.
30. 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 Twelfth WTO 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. He held the most recent informal consultations with a small group of the most active Members on 10 February 2021.
31. He said that, at the formal Council meeting in March, his predecessor 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. In an effort to bring movement into this long-standing and stalled debate, she had reiterated her suggestion for the Council to identify such areas of agreement – either through delegations' suggestions, or through proposals by the Chair on the basis of discussion records – in order to help focus the discussion on areas of disagreement. These suggestions did, however, not attract consensus, and Members reiterated their known positions regarding the applicability of NVSCs in the TRIPS area generally.
32. At consultations he held on this matter on 24 March, Members' appetite for engagement had not changed, and there was no interest in a chair-led process in this regard. Some delegations already anticipated a political linkage of this item with the E-commerce moratorium at the time of MC12. In light of this, he had emphasized that, while he was ready to facilitate process, there would be no outcome without Members' engagement. Against that background, he said, Members were now once again in the familiar situation where a Ministerial Conference was approaching, and delegations' positions remained as polarized as ever.
33. His role as Chair was to recall that the mandate given to the Council is "to examine scope and modalities for such complaints under the TRIPS Agreement, and to make recommendations to the next ministerial conference". He emphasized that MC12 was now only six months away, and there remained only one regular formal TRIPS Council meeting at which the Members could formulate a recommendation as instructed.
34. Against this background, the Chair invited Members to share their views on how to progress the Council's work in this item between now and MC12.
35. The representatives of Brazil; Tanzania on behalf of the African Group; Chile; Bangladesh; Egypt; Australia; Argentina; the Russian Federation; South Africa; the European Union; Nigeria; China; Canada; Indonesia; the Plurinational State of Bolivia; the United States; Sri Lanka; Switzerland; and India took the floor.
36. The Council took note of the statements made and agreed to revert to this matter at its next meeting.
IP/C/M/100, IP/C/M/100/Add.1