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

Mr. S. Harbinson (Hong Kong)
B.2.i Procedures for giving effect to the obligation to notify implementing legislation under Article 63.2
13. The Chairman recalled that, at its meeting of 9 March 1995, the Council for TRIPS had requested the Secretariat to make a compilation of how similar requirements regarding the notification of implementing legislation were being handled under other agreements in the WTO system and that informal consultations should be held on the matter of the implementation of Article 63.2 prior to today's meeting of the Council. The note prepared by the Secretariat had been circulated in document IP/C/W/4. The Chairman said that, as a result of the informal consultations, he had circulated an informal paper dated 24 May 1995 (subsequently distributed as document IP/C/W/6) which was described as a working hypothesis for procedures for notification of, and possible establishment of a common register of, national laws and regulations under Article 63.2. The term "working hypothesis" had been used in order to reflect as accurately as possible the status that he believed, as a result of his informal consultations, Members would be prepared to give the text at this stage, in particular in the context of consultations with WIPO. He had sensed that, whereas most Members were happy with the basic approach and many of its details, they would not want to be, at this stage, on record as being wedded to it in every respect. Moreover, there had also been a view that it would be inappropriate to initiate consultations with WIPO on the basis of a text which represented a final view of the WTO. He believed that this was sensible not only from the point of view of relations with WIPO, but also because additional information and insights might be obtained in the course of the consultations which would lead to improvements to the proposed procedures. He also believed that it was important to initiate discussions with WIPO without too much delay and that the text represented the best basis for doing so. 2. Continuing, the Chairman said that one point that had arisen in his consultations was whether the Council for TRIPS should waive the obligation for notifications to be made directly to the Council, if consultations on a common register were successful, which possibility was an option available to the Council under Article 63.2. His consultations on this matter had indicated that the view of most delegations was that they would not, at least at this stage, envisage using this option. There appeared to be two main reasons for this. First, the point had been made that notifications of implementing legislation under GATT/WTO practice constituted more than the mere communication of information to the Secretariat; in fact, they constituted a statement by each Member to the other Members, through the Council, that this was the way in which the Member was giving effect to its obligations under the agreement in question. The second reason was that the notification requirements under the TRIPS Agreement were broader than those under the conventions in the WIPO context. Whereas a country which met its TRIPS notification obligations would also have communicated the information necessary to meet its WIPO obligations, the reverse would not be true. The Chairman said that concerns had been expressed in the informal consultations about the translation burdens that might be put on governments whose national language was not an official language of the WTO, especially at the outset when a large volume of legislation might have to be notified at the same time, for example after the beginning of next year when the bulk of obligations would come into force for developed countries. The last sentence of paragraph 11 and the penultimate sentence of paragraph 14 were intended to help respond to this concern. In his consultations, he had also detected a fairly general view that it would be sensible, from the point of view both of helping delegations cope with translation burdens and of helping the Council to organize its work most effectively, to draw up a schedule for the examination of the national implementing legislation of developed countries in 1996, and that this might most sensibly be structured on a subject-by-subject basis following essentially the main headings of Parts II and III of the TRIPS Agreement. If this type of approach would be acceptable, he was willing to submit at the next meeting a proposed draft schedule. Turning to the suggestion in paragraph 10 according to which each Member might provide a listing of its "other laws and regulations" together with a brief description of the relevance of each law and regulation to the provisions of the TRIPS Agreement, he said that a fairly simple two-column type of presentation, with the title of the law or regulation in question in one column and a brief description of the subject of the law or regulation and of its relevance to the TRIPS Agreement in the other column, might be envisaged. He suggested that the Secretariat might be asked to produce a format for this purpose. There was also a suggestion in paragraph 11 that a checklist of issues indicating how national legislation responded to the enforcement requirements of the TRIPS Agreement might be prepared. If the Council would agree, the Secretariat might be asked to prepare a first draft of what such a checklist might look like.