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

H.E. Ambassador Dagfinn Sørli (Norway)
Chad on behalf of Least-developed countries
14 EXTENSION OF THE TRANSITION PERIOD UNDER ARTICLE 66.1 OF THE TRIPS AGREEMENT FOR LEAST DEVELOPED COUNTRY MEMBERS

513.   It is a pleasure to participate in this afternoon's meeting. Today is an important day for our Group. I would like to thank all of our partners for this significant achievement. For almost nine months, the TRIPS Council has been discussing our request for an extension of the transition period that we submitted. Our request has received very broad support from the Members of this Council, for which we are grateful. Similarly, our well-reasoned request has also received significant support outside the WTO from legislators, non-government organizations (NGOs), civil society and academics. We are grateful to them as well. 514.   In good faith and with goodwill, we participated in the informal consultations you kindly organised to find a solution. We have engaged in direct talks with Members who have expressed concern and have also worked in different settings and configurations. We have made significant concessions. This is the hallmark of any negotiation, especially one based on consensus. The nature of any negotiation is that nothing is agreed until everything is agreed. The compromise that we have reached through the adoption of this decision is the result of many months of intense negotiations. It does not fully meet the ambition of our request; namely that the duration of this extension request should be until our countries cease to be LDCs, and then for a limited period of time following graduation. 515.   However, I must say here that I appreciate the consensus we have reached today contained in document JOB/IP/46. It is therefore a compromise solution that we accept, on the understanding that Members have also assured us of their readiness to continue discussions in good faith on a postLDC graduation transition period in the General Council. 516.   Our group is grateful to all those who have contributed to this outcome. We thank the Members of this Council who supported our cause and encouraged us to find a solution. We thank our partners for their commitment to finding a way forward. We thank you, Chair, for leading the many informal consultations and helping to move the process forward late into the night on 25 June 2021. We also thank your predecessor, H.E. Ambassador Xolelwa MLUMBI-PETER, who facilitated the process before you took over. We also thank the Secretariat for the logistical support it provided during the process. 517.   LDCs will therefore benefit from an extension of the transition period by thirteen years, until 1 July 2034. The next few years will be difficult for all, but especially for LDCs. While health restrictions are beginning to be lifted in Geneva and Western Europe, many of us LDCs are still suffering the full impact of this pandemic. Without listing the LDCs where restrictions are still in place, or those that are in the process of tightening them to cope with the third wave, our first concern is still to save the lives of our people. We are also trying to contain the economic decline that has occurred. 518.   Secondly, we need to make up for the valuable development gains made over the past decades, which have been lost over the past 18 months. In this regard, we sincerely hope that our partners will indeed implement enhanced support measures for LDCs, particularly in the areas of trade and technology transfer, within the competence of this Council and as provided for in Articles 66.2 and 67 of the TRIPS Agreement. 519.   As the situation of LDCs improves and we are equipped to participate increasingly in global trade and the multilateral trading system, we will have more incentives, and capacity, to implement the provisions of the TRIPS Agreement.

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