H.E. Ambassador Dr Lansana GBERIE

Bolivia, Plurinational State of

8 NON-VIOLATION AND SITUATION COMPLAINTS

113.   Bolivia's position on this issue remains unchanged and I have stated it at previous meetings of this Council. We consider that the benefits derived from the Agreement can be adequately protected by applying the letter of the Agreement, in accordance with the principles of international law and without introducing a legally uncertain notion, such as the one before us. In no way does the moratorium jeopardize the flexibility of TRIPS-related rights and obligations. On the contrary, applying non-violation complaints could put the rights of intellectual property owners at odds with the ability of governments to legitimately implement their regulatory policies, even limiting their sovereign capacity to introduce new social, economic and health-related development measures. We reiterate that there is no precedent for the application of these complaints. Furthermore, no concrete examples have been given of instances in which an otherwise TRIPS-consistent measure would impair or nullify benefits, beyond the obligations already set out in the Agreement, so it is unnecessary for us to even continue this discussion. However, we remain committed to moving constructively towards a definitive and consensual solution before the MC13.

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

27. 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.
28. 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.
29. 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. Identifying such areas or elements of agreement regarding the nature of nonviolation and situation complaints could help delegations focus their engagement on the areas of disagreement and thus make at least some progress in framing the relevant questions for discussion.
30. 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 longstanding debate.
31. The representatives of India; Switzerland; Argentina; Sri Lanka; Brazil; Canada; Bangladesh; South Africa; United Kingdom; Nigeria; Indonesia; Chile; United States of America; Peru; the Russian Federation; Bolivia, Plurinational State of; Korea, Republic of; Panama; Hong Kong, China; and the European Union took the floor.
32. The Council took note of the statements made and agreed to revert to this matter at its next meeting.

IP/C/M/106, IP/C/M/106/Add.1