188. A representative of the Secretariat briefed the Council on the procedural requirements of acceptance and current status of acceptances of the amendment to the TRIPS Agreement. He recalled that the TRIPS Amendment was a formal amendment to an international treaty, the TRIPS Agreement. The amendment process had started with the adoption, on 6 December 2005, of the General Council decision on the Amendment of the TRIPS Agreement. This decision reflected the political consensus reached by all WTO Members to amend the Agreement. In terms of international treaty law, it was the Protocol attached to the General Council decision that amended the TRIPS Agreement. However, for the amendment to have legal effect in the WTO, Members needed to formally express their consent to be bound by the Protocol. The General Council decision and the Protocol explicitly invited Members to accept the Protocol. The WTO Agreement, to which the TRIPS Agreement was attached as Annex 1C, included special rules on amendments in its Article X. Under Article X:7 of the WTO Agreement, formal acceptance of the TRIPS Amendment occurred by Members depositing an instrument of acceptance with the Director-General, who served as the depositary of the multi- and plurilateral trade agreements.
189. He said that there were several requirements for depositing a valid instrument of acceptance. First, the instrument of acceptance had to be a written document. He noted that there was no established form for this document, and that each Member would have its own practice in accepting international treaties and treaty amendments. However, under international law, the instrument of acceptance had to have certain elements in order to give clear and unambiguous expression to the relevant Member's intention and consent to be bound by the relevant instrument, in this case, the Protocol. In particular, the instrument of acceptance had to: (i) reproduce or at least clearly identify the Protocol by its title and by the place and date of its adoption, for example, "the Protocol Amending the TRIPS Agreement, done at Geneva on 6 December 2005"; (ii) indicate that the Member concerned formally accepted the Protocol; (iii) indicate the date and the place of issuance of the instrument of acceptance; and (iv) be issued by one of the "the Big Three", namely the head of state, the head of government, or the foreign minister of the Member concerned, depending on the Member's constitution and practice. Alternatively, the instrument of acceptance could be issued by another person, provided that one of the Big Three had formally issued what was known in treaty law as "full powers", which was a document specifically authorizing this person to accept the Protocol on behalf of the Member concerned. In any event, the instrument of acceptance had to be signed and had to indicate the name and title of the person signing the instrument.
190. He noted that the instrument needed to be deposited within the period of acceptance. Following two extensions of the original acceptance period, the current deadline for depositing acceptances was 31 December 2011. In other words, a Member had until this date to provide its signed instrument of acceptance to the Director-General.
191. On the question of the current status of acceptances, the representative of the Secretariat said that, as the General Council Decision and the Protocol provided, the Protocol was due to take effect in accordance with Article X:3 of the WTO Agreement. Pursuant to Article X:3, the amendment to the TRIPS Agreement resulting from the Protocol "shall take effect for the Members that have accepted [it] upon acceptance by two thirds of the Members and thereafter for each other Member upon acceptance by it". He noted that two thirds of the Membership would need to deposit an instrument of acceptance for the Protocol Amending the TRIPS Agreement to enter into force; this had not, as yet, occurred.
192. He said that there was a need to clearly distinguish between acceptance of the Protocol and implementation of the Paragraph 6 System in Members' domestic legal framework. He noted that it had been brought to the attention of the Secretariat that certain Members had postponed the acceptance of the Protocol because they had linked it to the adoption of domestic implementing legislation. Acceptance of the Protocol was an international treaty law act expressing a Member's consent to be bound by the Protocol on the international plane. It represented a Member's consent that WTO Members were entitled, i.e. permitted but not required, to use the system incorporated in the TRIPS Agreement through the Amendment. This process of acceptance needed to follow the relevant Member's constitutional requirements and the international treaty law requirements.
193. He noted that the act of acceptance was not dependent upon domestic implementation of the Protocol. The international act of accepting the Protocol needed to be clearly distinguished from the domestic implementation of the Paragraph 6 System. WTO Members could choose to take advantage of the flexibility provided in the Protocol and, if they did so, there could be a need to put it in place through a domestic legislative and regulatory process as governed by each Member's domestic procedures. Legally speaking, those two processes were therefore entirely separate. Members could choose to deal with them either jointly or separately. For example, a Member could choose to deposit an instrument of acceptance for the Protocol without adopting domestic legislation implementing the Paragraph 6 System, because the Member was only committing itself to accept that additional flexibilities became an integral part of the TRIPS Agreement. Similarly, a Member could put implementing legislation into place without having accepted the Protocol. There were examples for both approaches.
194. The representative of the Secretariat noted that the purpose of his presentation was to facilitate Members' understanding of the procedural implications of accepting the Protocol Amending the TRIPS Agreement. To further assist Members in drawing up their instruments, the information he had provided together with a model instrument of acceptance would be made available in writing. If particular Members had queries on how to accept the TRIPS Amendment, they could contact the Legal Affairs Division of the WTO Secretariat to seek further information.