114. The representative of the United States commended the Secretariat for its excellent and thorough background note tracing the history of non-violation disputes in the GATT and the WTO. This scholarly work highlighted the high standards and limitations of this type of remedy and the safeguards associated with it and should eliminate many of the concerns that had been expressed regarding non-violation nullification and impairment disputes, particularly the concern that expiration of the moratorium would result in a large number of disputes claiming non-violation nullification and impairment. As stated at the previous meeting, the United States believed that it was appropriate for the moratorium provided by Article 64.2 of the TRIPS Agreement to expire on 1 January 2000. Prior to that time, her delegation welcomed a full discussion of the scope and modalities of non-violation complaints. The possibility of non-violation nullification and impairment disputes had been part of the GATT dispute settlement system since its beginning. Failure to allow the possibility in connection with the TRIPS Agreement would ultimately invite creative law- and regulation-writing by any Member that might be dissatisfied by particular provisions of the TRIPS Agreement and which wished to avoid obligations. The TRIPS Agreement was part of the multilateral trading system and should provide Members with the same security and predictability that was available in relation to other WTO agreements. Her delegation believed that the benefits accruing to Members under the TRIPS Agreement could be determined as those deriving from the GATT were determined. These benefits would include national treatment and most-favoured-nation treatment accorded to each Member's nationals; the level of protection provided to each Member's nationals to each form of intellectual property covered by the TRIPS Agreement; the extension of the obligations to subject-matter existing on the date of application of the TRIPS Agreement; as well as other benefits. Some Members had expressed concern that the possibility of non-violation nullification and impairment cases had the potential to undermine Members' regulatory authority, in particular in relation to areas where governments exercised regulatory authority in support of policy objectives such as health and environmental protection. Her delegation believed that this concern was unfounded. The TRIPS Agreement was carefully negotiated to be sufficiently flexible to recognize different legal regimes and to accommodate Members' needs to achieve different policy objectives. The availability of non-violation nullification and impairment cases would merely provide security and predictability and help ensure that the TRIPS Agreement's flexibility was not misused in order to avoid legitimate obligations. The United States believed that Article 26 of the DSU provided all of the necessary assurances and safeguards for Members to handle any disputes that might arise alleging non-violation nullification and impairment under the TRIPS Agreement and to prevent any abuse of the dispute settlement process. She reiterated her delegation's strong view that the United States could not agree to the proposal that had been put forward, which would diminish the rights of Members under the TRIPS Agreement and weaken the obligations under it.
