112. The representative of Hong Kong, China also indicated his delegation's strong support for the proposal that had been introduced by Egypt, and thanked the representatives of Hungary and India for their comments, and the delegation of Canada for its paper. His delegation shared many of the views which these delegations had expressed. He also expressed his delegation's appreciation for the detailed and thorough research by the Secretariat in producing the comprehensive background note (document IP/C/W/124), which his delegation had given careful consideration. He wished to highlight the following important points in the Secretariat note. First, he referred to paragraph 4, which quoted paragraph 41 of the Appellate Body Report on India – Patent Protection for Pharmaceutical and Agricultural Chemical Products (document WT/DS50/AB/R), and emphasized that non-violation complaints were rooted in the GATT's origins as an agreement intended to protect reciprocal tariff concessions negotiated among the contracting parties under GATT Article II. Then, he referred to paragraph 14 and said that the relevant drafting history concerning Article 8 of the TRIPS Agreement showed that there had been a comprehensive debate during the Uruguay Round on issues relating to non-violation cases. Some Members had said before, in this and other fora, that the TRIPS Agreement represented a delicate balance of all Members' interests at the end of the Uruguay Round. The Council needed to tread carefully on Article 64.3, which was a built-in agenda item, that had the potential to affect the rights and obligations of Members under the TRIPS Agreement. His delegation's reading of Article XXIII:1(b) was that the term "benefit" in that context had traditionally been a negotiated reciprocal trade concession, which later proved to have been negated by non-tariff barriers or other policy measures adopted by another contracting party. On the other hand, the TRIPS Agreement protected the intellectual property rights of the nationals of all WTO Members. It was difficult to see the analogy between a tariff concession negotiated and accepted by all WTO Members with the multilateral recognition of rights of nationals under the TRIPS Agreement, where it could be said that nothing had been given away. Much had been said recently in another WTO body about the danger of individual Members resorting to unilateralism. There was a concern that non-violation complaints might belong to the same "generic variety". The Council needed to be further educated to allay that particular concern. His delegation therefore shared the serious concerns of many Members about the use of the non-violation remedy in the context of the TRIPS Agreement. That said, Article 64.3 was an important built-in agenda item per se. The Council needed to ask itself what were the possible systemic and practical implications of allowing such a remedy. Like other developing Members, Hong Kong, China did not yet have the benefit of having formally implemented the TRIPS Agreement. His delegation would therefore appreciate more education and understanding of this provision before the Council would come to any conclusion. Many of the points made by the representative of India needed to be answered.
