Ambassador Mero (United Republic of Tanzania)

Brasil

7 Non-violation and Situation Complaints

247. As everyone here knows, Brazil is a co-sponsor, alongside many countries, of the document just mentioned by the distinguished delegate of Russia, IP/C/W/385/Rev.1. Unlike the GATT and the GATS, TRIPS does not involve an exchange of concessions and it remains unclear how non violation complaints would apply to minimum regulatory standards that protect private property rights. While IPRs may, in some cases, facilitate international trade and investment, TRIPS obligations cannot be characterized as market access concessions in the same way as obligations under GATT or GATS. TRIPS for the first time regulated intellectual property within the framework of a major negotiation on trade rules. It is only natural that the resulting instrument would have distinctive characteristics in the acknowledgement that not everything that applies to trade in general applies to intellectual property. 248. The United States, please correct me if I am mischaracterizing your views, does not seem to believe that the availability of non-violation measures will raise systemic concerns. In Brazil's view, the response that Article 3.2 of the DSU will prevent the Dispute Settlement Body from adding to or diminishing the rights and obligations under existing WTO Agreements fails to recognize that applying non-violation complaints to TRIPS is tantamount to establishing a new course of action under these Agreements. In the absence of clear arguments to the contrary, the concern remains that non-violation complaints may give rise to incoherence among WTO Agreements. 249. The United States also seems to understand that the availability of non-violation complaints will protect Members for intentional evasion of obligations under TRIPS while preserving the ability of any Member to implement social and economic development policies, because in their view – and again please correct me if I am mischaracterizing – there are a number of ways to implement social and cultural policy goals. The Member may take this element of non-violation complaints into consideration when preparing measures to protect these goals. 250. Non-violation complaints would require WTO Members to compensate one another for measures that adversely affect foreign holders of IPRs and that were not foreseen during the Uruguay Round. Such an approach would arguably cover a range of domestic measures, may undermine the Agreement's flexibilities – including in the area of public health, and could jeopardize WTO Members' sovereign rights to develop new laws to protect the public interest. 251. Brazil understands non-violation complaints are not the way to protect the benefits arising from the Agreements. We have yet to hear arguments as to why the provisions of TRIPS are not sufficiently flexible to address the concerns raised by Members who support such a remedy. We believe that rather than relying on the legally imprecise notion of non-violation, a preferable approach would be to focus on the text of the Agreement supported by recognized principles of treaty interpretation. 252. To conclude, TRIPS is a unique and permanent balancing act with Article 1 clarifying that the Agreement provides for minimum standards, while Article 7 and 8 determine that it should be implemented with a view to ensuring a balance of rights and obligations and bearing in mind the protection of public health and nutrition. We are convinced that accepting non-violation complaints would nullify this delicate balancing act. This, indeed, would be the true nullification or impairment.

The Council took note of the Chairman's summary and the statements made.

37. The Chairman said that, at MC10, 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 and to make recommendations to MC11 in 2017. This instruction mirrored the original mandate in Article 64.3 of the TRIPS Agreement. The Council had discussed this matter in March and June 2016 based in part on a communication from the United States on "Non-Violation Complaints under the TRIPS Agreement" (IP/C/W/599); as well as a revised and updated version of "Non-Violation and Situation Nullification or Impairment Under the TRIPS Agreement" (IP/C/W/385/Rev.1) and a draft decision on non-violation and situation complaints for consideration at the forthcoming Ministerial Conference (IP/C/W/607), both sponsored by several Members.

38. In June 2016, he had remarked that the Council's work had been effectively blocked since the first discussions in the late 1990s. Recent discussions had mostly served to repeat well-known positions. The Council heard less on the question of scope and modalities, the specific aspect instructed by Ministers. He had consulted with Members in line with the Council's request in June 2016. These consultations had produced no new thinking or shifts in delegations' positions, and so he had no indication so far of how the Council could work towards fulfilling the Ministers' instructions in the remaining 12 months, and to prepare recommendations for MC11. There had been no consensus support for the idea, floated earlier, that he or the Secretariat put together a non-paper on possible elements of scope and modalities. At present, Members remained divided as to whether non-violation and situation complaints should apply to the TRIPS Agreement and whether there was a need to establish scope and modalities at all.

39. The Chairman reminded delegations that the initial deadline for accomplishing this task had been 1999 and that concrete proposals how to prepare the requested recommendations were yet to be tabled, after nearly 18 years of debate in the Council for TRIPS. If delegations wished to break the current cycle of extending the non-violation moratorium from one Ministerial Conference to the next, concrete suggestions would be needed in order to allow the Council to intensify its work on the examination of scope and modalities for non-violation and situation complaints.

40. He summarized for the record the main points of the discussion that Members had made in informal mode, noting that Members had a constructive exchange of views on whether a non-paper should be prepared, but could not reach agreement.

41. The representatives of the United States, Ecuador, Colombia, Switzerland, Egypt, India, Bangladesh, China, Argentina, the Russian Federation, Brazil, Japan, Peru, South Africa, Chinese Taipei, the Republic of Korea, Canada, the Plurinational State of Bolivia and Pakistan took the floor.

42. The Council took note of the Chairman's summary and the statements made.

IP/C/M/83, IP/C/M/83/Add.1