143. The Chairman recalled that, at Doha, the Ministerial Conference had adopted a decision on Implementation-Related Issues and Concerns (WT/MIN(01)/17). Paragraph 11.1 of the Decision stated that "[t]he TRIPS Council is directed to continue its examination of the scope and modalities for complaints of the types provided for under subparagraphs 1(b) and 1(c) of Article XXIII of GATT 1994 and make recommendations to the Fifth Session of the Ministerial Conference. It is agreed that, in the meantime, Members will not initiate such complaints under the TRIPS Agreement". He also recalled that, at its meeting in September 2002, the Council had set the first meeting of the Council in 2003 as a target date for the submission of specific proposals from delegations. This, however, was not to preclude earlier papers, or later ones, in an effort to find common ground. Since then, the Council had received one specific proposal on a recommendation that the Council could make to the Cancún Ministerial Conference. This proposal, introduced by Peru at the Council's meeting in November 2002, had been circulated in document IP/C/W/385.
144. He noted that the present meeting was the only formal meeting of the Council scheduled prior to the Ministerial Conference and that, consequently, the Council should now agree on the recommendation that it was instructed to make to the Cancún Ministerial Conference. In view of this, he recalled that he had taken this matter up at the Council's informal meeting on 23 May. In order to stimulate practical thinking on the action that the Council should take at the present meeting, he had noted at that meeting that, from a purely conceptual standpoint, there appeared to be four main options logically possible for such a recommendation:
• At one end of the spectrum, one option would be to follow the proposal in document IP/C/W/385 and recommend to the Fifth Ministerial Conference that violations of the type identified in Article XXIII.1(b) and (c) of GATT 1994 be determined inapplicable to the TRIPS Agreement. This would require some delegations to alter their position.
• At the other end of the spectrum, there was the option that the Council make, at the end of the present extension of the moratorium, non-violation and situation complaints available under the TRIPS Agreement, without subjecting them to any specific guidance as to their scope and modalities over and above those already envisaged by the DSU, i.e. the general safeguards provided in Article 26 of the DSU. The acceptance of this would require a large number of delegations to change their position.
• A third option was to recommend that non-violation and situation complaints be made available to disputes arising under the TRIPS Agreement, but make them subject to some specific additional guidance on their scope and modalities. The Council had agreed at its meeting in September 2002 to set the February 2003 meeting as the target date for any specific proposals in this regard. As of the date of the present meeting, the Council had not received any proposals that could form the basis for such guidelines.
• The fourth option was to recommend to the Fifth Ministerial Conference that the moratorium be further extended so as to allow the Council more time to consider the scope and modalities of non-violation and situation complaints in the area of TRIPS. He further recalled that, at the Council's informal meeting of 23 May, many delegations had noted that they still needed instructions from their capital or that they had not yet determined their position.
