106. We welcome the addition of the Kyrgyz Republic to the list of co-sponsors of document IP/C/W/385/Rev.1. As provided in that document, concessions under the TRIPS Agreement cannot be characterized as "market access" under GATT or GATS. The TRIPS Agreement, unlike other WTO agreements, is a sui-generis agreement designed to establish minimum standards of intellectual property protection. Complaints regarding measures pertaining to market access should be filed under relevant provisions of the GATT and the GATS; applying the non-violation remedy to the TRIPS Agreement is unnecessary to address these cases.
107. For cases in which a Member believes that the obligations of the TRIPS Agreement are not being properly fulfilled by another Party, Article 64 unambiguously establishes a dispute settlement mechanism which was invoked and duly used in cases before the dispute settlement body. Claims that the availability of non-violation and situation complaints (NVSCs) would prevent Members from evading their TRIPS obligations are not supported by evidence.
108. NVSCs can also threaten the use of flexibilities by Members, in violation of Articles 1, 7 and 8 of the TRIPS Agreement. They could jeopardize the use of exceptions and limitations for the development of laws to protect public health and affect the delicate balance of rights and obligations reached by the Agreement.
109. Furthermore, the fact that no consensus on the matter was reached during the negotiations of the Uruguay Round underlines that the negotiating parties were not convinced these types of complaints would contribute to the attainment of the goals of the TRIPS Agreement. The continuous renewal of the moratorium since 1999 shows that Members remain unconvinced of any benefit that could be brought by the application of non-violation and situation complaints. In short, the application of NVSCs to intellectual property disputes would generate systemic imbalances and reduce the legal certainty of multilateral IP law.
110. Consequently, we propose that the TRIPS Council recommend to the Ministerial Conference scheduled to be held in Buenos Aires that complaints of the type provided for under sub-paragraphs 1(b) and 1(c) of Article XXIII of GATT 1994 shall not apply to the settlement of disputes under the TRIPS Agreement.