38. The Chair recalled that at its session of 10 December 2019, the General Council had directed the TRIPS Council to continue the examination of the scope and modalities for non-violation and situation complaints, and to make recommendations to the 12th Ministerial Conference (MC12). It had also been agreed that, in the meantime, Members would not initiate such complaints under the TRIPS Agreement. Since then, this item had been discussed at each formal meeting of the Council, as well as at informal consultations.
39. At the Council meeting in March 2021, 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 had not, however, attracted consensus, and Members had reiterated their known positions regarding the applicability of non-violation and situation complaints in the TRIPS area generally.
40. During the consultations held on 24 March, Members' appetite for engagement had not changed, and there had been no interest in a chair-led process in this regard. Some delegations already had anticipated a political linkage of this item with the E-commerce moratorium at the time of MC12, while others had insisted that the two moratoria should be considered on their own merits. In light of this, the Chair had emphasized that, while he was ready to facilitate process, there would be no outcome without Members' engagement.
41. In the most recent consultations held on 6 October, the Chair had also detected no substantive movement in delegations' positions. In those meetings he had shared his impression that, given the short time left before MC12, and the absence of any substantive engagement on scope and modalities in 2021, another extension of the moratorium could not be ruled out. Therefore, in order to assist Members in case they should wish to recommend such a decision to the Ministerial Conference, he had circulated a draft decision text in document JOB/IP/52, based on previous decisions. The text was intended as a basis for delegations' consideration and could be improved upon, amended or just put to the side.
42. The representatives of Brazil; Bangladesh; Chile; Zimbabwe; Egypt; Panama; Indonesia; Switzerland; China; Pakistan; Nigeria; Norway; Canada; the Plurinational State of Bolivia; India; Chinese Taipei; Guatemala; South Africa; the United Kingdom; Argentina; New Zealand; Colombia; Australia; the European Union; the United States; and Ukraine took the floor.
43. The Chair said he had heard support for the draft decision, but no consensus yet. In light of this he 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.
44. At the reconvened meeting on 5 November 2021, the Chair proposed that the Council agree to adopt the recommendation contained in document JOB/IP/52.
45. The Council so agreed.
46. The representatives of Sri Lanka, Brazil and Chile took the floor.
47. The Chair thanked all delegations for their engagement and cooperation in this matter. He hoped that having adopted this recommendation well ahead of MC12 would send a positive signal to Ministers and would allow the Council to focus on the other agenda items that remained open.
48. The Council took note of the statements made.
