Actas - Consejo de los ADPIC - Ver detalles de la intervención/declaración

Ambassador Alfredo Suescum (Panama)
6 NON-VIOLATION AND SITUATION COMPLAINTS
87. South Africa would like to associate itself with the statements made by India and China. As a Member of the WTO, it is fully committed to upholding its obligations and commitments as set out in the different WTO laws and regulations with specific reference to the TRIPS Agreement. The purpose and aim of Article XXIII is to ensure compliance with the GATT rules and principles by providing the Members with an opportunity to make representations should the situation provided for in sub-paragraphs 1(b) and 1(c) arise. The TRIPS Agreement is different. It is a sui generis agreement which does not aim at promoting market access or harmonizing the standards of Members with regards to protection and enforcement of IPRs. It is there to provide the minimum standards for the protection and enforcement of IPRs. The application of subparagraphs 1(b) and 1(c) of Article XXIII of GATT 1994 under the TRIPS Agreement would undermine the sovereign rights of the respective Member states when they adopt laws to protect IPRs within their borders. This application would furthermore restrict the flexibilities provided to the Members and befit the balance that has been maintained under the TRIPS Agreement. South Africa recognises the need for protection and enforcement of IPRs. However we believe that the application of non-violation and situation complaints would not be practical under the TRIPS Agreement.
The Council took note of the statements made and agreed to revert to the matter at its next meeting.
6.1. The Chairman recalled that, at the Eighth Session of the Ministerial Conference, Ministers had directed the Council 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 (so-called "non-violation and situation complaints") and make recommendations to their next Session. It was agreed that, in the meantime, Members would not initiate such complaints under the TRIPS Agreement.1 He said that this meant that the Council should agree on its recommendations to the Bali Ministerial Conference at its end-of-year meeting scheduled for 10-11 October.
6.2. At the Council's November 2012 meeting, many delegations had welcomed the updated Secretariat note summarizing the Council's earlier discussions on the matter,2 as well as a briefing session it had organized. At its last meeting in March, the Council had continued its consideration of this matter, and requested the Chair to hold consultations on the matter.

6.3. In his consultations, he had said that he would welcome any feedback from delegations on whether they thought that there was anything more that the Chair or the Secretariat could do to further facilitate the Council's discussion of the matter.

6.4. He indicated that he intended to intensify consultations prior to the next meeting with a view to enabling the Council to agree on its recommendations to the Ministerial Conference at its meeting in October. While this might appear a low priority issue, it should be borne in mind that under the TRIPS Agreement the Council was originally required to make these recommendations over 12 years ago, in 1999.

6.5. The United States, India, China, Brazil, the Plurinational State of Bolivia, South Africa, Ecuador, Cuba, Switzerland, Nigeria, the European Union, and the United States took the floor under this item. The statements will be reproduced in an addendum to the present record.

6.6. The Chairman reiterated that he intended to intensify his consultations on the matter with a view to enabling the Council to agree on its recommendations to the Bali Ministerial Conference at its October meeting. He said that, in the meantime, he would remain available to any delegation that would have any ideas or suggestions to share. He also noted some delegations' wish to participate in the consultations.

6.7. The Council took note of the statements made and agreed to revert to the matter at its next meeting.

IP/C/M/73, IP/C/M/73/Add.1