H.E. Ambassador Dr. Lansana GBERIE

South Africa

7 NON-VIOLATION AND SITUATION COMPLAINTS

99.   We align with the statement made by Tanzania on behalf of the African Group. South Africa takes the floor only to indicate that our position on this matter remains unchanged. We will submit our full statement for the minutes. 100.   South Africa subsequently submitted the following statement: It is a matter of course that proponents of the application of NVCs under the TRIPS Agreement have not provided concrete examples of the kind of scenarios under which an otherwise TRIPS-consistent measure would impair or nullify benefits beyond those arising from the obligations set out in the Agreement. As suggested previously, in order to advance discussions on this matter, delegations could be invited to identify areas or elements of agreement which could be collated by the Secretariat. This can build on previous discussions on what NVCs should not be applicable to. This would narrow the issues to those areas in which we still need to engage to ensure focussed discussions going forward. 101.   Finally Chair, South Africa would like to reiterate its view that the traditional linkage between the moratorium on NVCs and the e-commerce moratorium cannot hold. The linkage is artificial and no longer sustainable.

The Council took note of the statements made and agreed to revert to this matter at its next meeting.

25. The Chair recalled that the examination of scope and modalities for non-violation and situation complaints under TRIPS was in line with the initial mandate in Article 64.3 of the TRIPS Agreement, which had required recommendations to be submitted to the Ministerial Conference in 1999.
26. He recalled that at the 12th Ministerial Conference, Ministers had adopted a Decision on TRIPS non-violation complaints (document ), which directed the TRIPS Council to continue its examination of the scope and modalities for non-violation and situation complaints, and to make recommendations to the 13th Ministerial Conference. The Decision also provided that, in the meantime, Members would not initiate such complaints under the TRIPS Agreement.
27. He said that, during recent meetings of the TRIPS Council, a few delegations had signalled openness to return to substantive discussions in this area. In March 2021, his predecessor had suggested that Members could identify areas of agreement in the non-violation discussions. He had suggested that identifying such areas, or elements, of agreement on the nature of non-violation and situation complaints could help delegations focus their engagement on the areas of disagreement and thus make at some progress in framing the relevant questions for discussion.
28. The Chair inquired whether delegations were more at ease now to consider this or any other approach that might help identify common ground, in order to get some movement in this long-standing debate.
29. The representatives of Tanzania; India; Bangladesh; Brazil; Indonesia; Sri Lanka; Argentina; Chile; China; and South Africa took the floor.
30. The Council took note of the statements made and agreed to revert to this matter at its next meeting.

IP/C/M/105, IP/C/M/105/Add.1, IP/C/M/105/Corr.1