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

H.E. Ambassador Dagfinn Sørli (Norway)
Tanzania on behalf of African Group

443.   Thank you, Chair, for your efforts in ensuring that this important matter is brought to a close in a meaningful way. The African Group would also like to thank the delegations of Chad and Bangladesh for their introductory remarks on this agenda item. On behalf of the African Group, I want to restate briefly the Group's position stated during the consultative meeting held on 4 June 2021 as follows. a. This agenda item is a high priority for the African Group, given that nearly three-quarters of least developed countries are from the African continent. The Group continues to follow attentively the evolution of this matter. b. The little progress towards settling this agenda item is of great concern to the African Group, considering the short period left until the current extension comes to an end at the end of this month. c. Many Members are supporting the LDCs' request, but only a few Members have continued to delay the decision for an extension to be made. The African Group is supporting the proposed waiver as enshrined in document IP/C/W/668. d. The Group believes that LDCs need the waiver now more than ever before, due to the impact of COVID-19. The situation of many LDCs has worsened. Their vulnerability has much been exposed during the pandemic due to their lack of an industrial technological base to produce basic needed COVID-19 health products and therapeutics. e. The LDCs' financial needs have been exacerbated during the period of the pandemic, and will remain so until the pandemic is over, due to the need to procure COVID-19 PPE, diagnostics kits, vaccines and therapeutics. f. LDCs have been predicted to experience the worst economic performance in 30 years, which has been reported by UNCTAD in 2020.11 This is because of the COVID-19 crisis. Major economic strides attained by LDCs in over a decade, under the support of multilateral and bilateral arrangements, have been stricken off within a short period of time and extreme poverty will rise in LDCs. g. Economic recovery in LDCs will be prolonged post-pandemic due to the failure of the supporting private sector, economically and financially. Even before the pandemic, the LDCs reported not to have progressed in over a decade to reach the Istanbul Programme of Action target of doubling their share of global trade. h. All of these conditions, including financial and administrative needs, which necessitated granting LDCs the waiver as enshrined in Article 66.1, are now more prevalent in LDCs due to the impact of COVID19. i. Moreover, LDCs still do not have the viable technological base envisioned in Article 66.1. Developed country Members committed to support this endeavour, as stipulated in Article 66.2 of the TRIPS Agreement. j. Therefore, the African Group once again reiterates the importance and urgency for the TRIPS Council to extend the LDC TRIPS waiver. 444.   The TRIPS Council should also ensure an effective implementation of Article 66.2 of the TRIPS Agreement, with a view to building strong productive industrial capacity in LDCs. LDCs should be able to produce basic needed products, particularly pharmaceuticals, and particularly in times of crisis, like now. 445.   The African Group was expecting that this important matter could be brought to a close today, as discussions have already been prolonged, considering that the proposal was tabled in October 2020. Prolonged discussions on subjects like this cause LDCs to worry that this situation could reoccur in the future. To avoid prolonged discussions on a similar matter, we think the proposal of until graduation is very relevant for the consideration of Members.

The Council took note of the statements made.
62. The Chair recalled that the general transition period for least developed country Members had been extended twice, most recently by the TRIPS Council decision IP/C/64 of 11 June 2013, and was currently set to expire on 1 July 2021 – in less than one months' time. With respect to extensions of this period, he noted that the second sentence of Article 66.1 of the TRIPS Agreement provided that "The Council for TRIPS shall, upon duly motivated request by a least developed country Member, accord extensions of this period."
63. He also recalled that, under a parallel decision concerning specifically pharmaceutical products, the Council had extended the transition period for LDC Members until 1 January 2033 or until such a date on which they cease to be a LDC Member, whichever date is earlier. During this period, LDC Members concerned were not obliged to implement or apply the sections of the TRIPS Agreement regarding patents and the protection of undisclosed information, nor to enforce rights provided under these sections, insofar as pharmaceutical products were concerned.
64. He reminded the council that the LDC Group had circulated its request for an extension in document on 1 October 2020. After having held consultations, at the formal meeting of the Council in March, his predecessor had shared her impression that (1) delegations were in principle favourable to extending the transition period for LDCs, that (2) some delegations had expressed a preference for extending the period for a limited number of years, and that (3) others had raised additional questions on how the request for a transition period for graduated LDCs related to Article 66.1. At that meeting, the Council had requested the incoming Chair to hold consultations on this matter.
65. He said that, since March, he had been in touch with the LDC Group coordinators and a number of delegations in various formats. At the request of the LDC Group he had held a series of intensive consultations with the LDC Group coordinators and five developed country delegations which the LDC Group had identified.
66. Based on the interventions by delegations in these consultations, it was his reading that there was broad willingness to grant an extension of the transition period for LDCs on the basis of the 2013 decision. However, regarding the request for additional years of transition after graduation of LDCs there were more questions – and it was the view of a number of delegations that such a request was not covered by the Council's mandate in Article 66.1.
67. Given that the LDC transition period expires on 1 July of this year, and – according to the UN Department of Economic and Social Affairs website – the next LDC graduations of WTO LDC Members were not expected before 2024, it had seemed to him that the most immediate – indeed, pressing – issue was the extension of the transition period for those Members that are currently LDCs under Article 66.1. This affected their status already next month, whereas the status of graduating LDCs would not be a practical issue for at least three years.
68. In light of this scenario, and as a pragmatic approach to address the most pressing issue first, he had suggested during the consultations that these two issues could be discussed separately. He had proposed that delegations could first work towards a decision on extending the LDC transition period under Art. 66.1 based on similar terms as in 2013, so that such a decision could be adopted at present meeting of the Council.
69. As regards the question whether members should be granted additional years of a transition period also after graduation, he had suggested that this could become the subject of a focused discussion – in the TRIPS Council or elsewhere – where the systemic issues Members had raised in this regard could be addressed more broadly, and with a somewhat longer time horizon.
70. He said that his suggestion had, however, not been taken up by delegations, and the LDC Group had requested an informal open-ended meeting of the Council on this subject which was then organized on 4 June 2021.
71. At that meeting, Members had had an opportunity to exchange views and listen to each other’s concerns. His assessment was that the meeting had confirmed that agreement on extending the transition period for LDCs was within reach, even if the question of duration remained to be solved, while disagreements remained over the proposal to extend the transition period beyond graduation.
72. In short, he said, Members had not been able to make as much progress as he had hoped when he had briefed Members on the consultations on 30 April 2021. His objective had been to have a basis for a decision to be adopted at this Council meeting. Given that this had not been possible and given that the current transition period will expire in three weeks from now, he encouraged delegations to share their thoughts and suggestions on how the Council could possibly address this issue.
73. The representatives of Chad on behalf of the LDC Group; Bangladesh; Tanzania on behalf of the African Group; Nepal; Senegal; Angola; Chile; Uganda; Vanuatu; Pakistan; Malawi; Mongolia; India; Myanmar; Argentina; Brazil; Mozambique; China; South Africa; Australia; Norway; the United States; Canada; Switzerland; Japan; the European Union; the United Kingdom; Turkey; Togo; and Zambia took the floor.
74. The Chair suggested to keep this agenda item open with a view to reconvening the meeting as appropriate when delegations were ready to take a decision on this item.
75. The Council took note of the statements made and agreed to keep the agenda item open.
76. At the Council for TRIPS reconvened formal meeting of 29 June 2021, the Chair proposed that the Council adopt the "Draft Decision on the extension of the transition period under Article 66.1 for least developed country Members", that had been circulated in document JOB/IP/46 on 25 June 2021. He recalled that this decision had been discussed in small group consultations in the previous week, and had been briefly introduced at an informal meeting of the Council the same afternoon, where Members had also been briefed on the consultations that had led to this agreement. In light of those discussions, he suggested that the Council adopt the decision as contained in document JOB/IP/46.
77. The Council so agreed.
78. The Chair thanked all delegations for their good faith efforts to find a solution to this matter in time before the current transition period expired the following day. He also shared his understanding that the question whether newly graduated LDC members should be accorded additional flexibilities under the TRIPS Agreement after their graduation had not disappeared. It was his understanding that the LDC Group and certain delegations agreed in their contacts that this post-graduation element of the request would best be pursued under the LDC proposal already on the agenda of the General Council. He encouraged all delegations to engage in that discussion constructively and in good faith.
79. The representatives of Chad on behalf of the LDC Group; Bangladesh; the United Kingdom; Nepal; Tanzania on behalf of the African Group; Afghanistan; Malawi; the United States, Japan; Switzerland; Togo; Canada; China; Mauritius; the European Union; Korea; India; Myanmar; Mozambique; South Africa; Australia; the Central African Republic; Egypt; and Pakistan took the floor.
80. The Council took note of the statements made.
IP/C/M/100, IP/C/M/100/Add.1

11 UNCTAD Least Developed Countries Report 2020: https://unctad.org/topic/vulnerable-economies/least-developed-countries/ldc-report.