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

14 EXTENSION OF THE TRANSITION PERIOD UNDER ARTICLE 66.1 OF THE TRIPS AGREEMENT FOR LEAST DEVELOPED COUNTRY MEMBERS
528.   I wish to associate with the statement delivered by Chad on behalf of the LDC Group and would like to add a few points. My delegation would like to extend sincere appreciation to you, Chair, for your continuous efforts and contribution. I also wish to thank the former Chair of the TRIPS Council, H.E. Ambassador Xolelwa MLUMBI-PETER for her contribution. Nepal welcomes the decision, and sincerely appreciates all Members of the WTO for their entire support in adopting this decision at this meeting by consensus. 529.   The decision has well-recognized the special needs and requirements of the LDCs. It will provide us needful policy space to overcome the difficulties that we are facing. My delegation also wishes to thank Chad, the LDC Group coordinator, and Bangladesh, focal point on TRIPS, for their continuous efforts and contribution. I commend all Members who supported this proposal fully by expressing their views in favour of the proposal while discussing it at various meetings. I also thank all Members who have raised concerns on our proposal and finally showed sufficient flexibility and expressed their willingness to agree at this level, although the consensus is below our expectations. 530.   My delegation also appreciates all views expressed in favour of our proposal outside the WTO system. The draft decision may not be up to our expectation as submitted, but it has progressed to a higher level from the earlier one. Therefore, this is a good beginning in the context of MC12 through which we expect many more positive outcomes in favour of the LDCs, including the graduating ones. We were of the view that the draft decision should also incorporate some reference to the graduating LDCs as stated in our submission. However, my delegation believes that this matter will be recommended to the General Council, which will be a good reference for us to relate this matter to the graduation related agenda at the General Council. 531.   Nepal is fully committed to a rulesbased, predictable and just multilateral trading system, and effective implementation of WTO laws in a timely manner. However, implementation of the TRIPS Agreement is not so easy for the LDCs. Therefore, the Agreement has envisioned longer transition periods and mutual responsibilities where the developed country Members are expected to extend technology transfer as per Article 66.2 of the TRIPS Agreement with a view to building a sound technological base in LDCs. This indicates that the developed country Members have also a significant role to play in this regard. Furthermore, while discussing the need for such a transition period for graduating LDCs, we believe that graduation itself does not ensure a sound technological base in the LDCs. 532.   Graduation presents additional challenges to them in trade and development. Graduated countries have a great risk of falling back into the LDC category if their progress is not sustained. Therefore, all the LDC-specific flexibilities need to continue to apply after graduation, and be phased out progressively in line with the globally accepted principle of "smooth transition". This extension would not restrict any LDC, including graduated ones, from undertaking an early implementation of the provisions of this Agreement as and when appropriate and possible. 533.   Finally, enriched technology transfer under TRIPS Article 66.2 and other support measures, as reflected in Article 67 of the Agreement, would contribute to enabling LDCs to effectively implement the TRIPS Agreement in a timely manner.
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.