164. The representative of Australia found the joint paper a particularly constructive addition to the Council’s discussions on non-violation disputes and would provide detailed comments on it and the US paper at the next meeting. Her delegation believed that discussions on the scope and modalities of non-violation complaints should continue in the Council and saw a need to establish a conceptual framework and a process for working on draft recommendations in the Council. The Council should avoid a situation where the scope and modalities of non-violation complaints would be determined opportunistically, in a case-by-case way in individual disputes. To this end, her delegation was in the process of preparing a paper which would set forth some ideas to facilitate Council discussions on these issues canvassing the range of factors that might be considered, rather than promoting any one interpretative approach. Before briefly explaining some of the ideas in the draft paper, she wished to make the following observations. The limited debate so far in the Council appeared to assume that the non-violation mechanism would be used directly to promote the interests of individual holders of IPRs in export markets. The TRIPS Agreement did not call for the protection of private IPRs as an end in itself, but within a balanced public policy framework. An assessment of benefits and objectives of the TRIPS Agreement should pay heed to the stated objectives and Preamble of the Agreement. Non-violation cases had been treated with circumspection in general GATT/WTO jurisprudence and any recommendations on scope and modalities in relation to the TRIPS area should reflect this cautious approach. Australia did not accept the view put forward in the US paper that the period for discussion of views on scope and modalities of non-violation complaints had passed. The Council had, under Article 64.3 of the Agreement, an undischarged responsibility to prepare recommendations on the scope and modalities of non-violation TRIPS disputes. Her delegation concurred with the view of some delegations that the moratorium had technically expired, but equally accepted that work on scope and modalities should continue in earnest. She suggested that those Members speaking most strongly in favour of the need for non-violation disputes in the TRIPS context should come forward with illustrative examples of how this right would be usefully exercised. Her delegation believed there were several key issues to be considered in formulating TRIPS Council recommendations: first, what was meant by "scope" and "modalities", in order to determine the nature of any recommendations; second, what was meant by the key concepts of "benefit accruing directly or indirectly under the Agreement", "nullification or impairment" of such a benefit, and "impediment to the attainment of any objective of TRIPS". Consistent with the general principles of treaty interpretation, she suggested there were three complementary approaches to interpreting these key issues: analysing the terms in their direct context within the relevant WTO agreements (TRIPS, DSU and GATT 1994); reviewing the GATT/WTO dispute settlement practice on non-violation disputes in other fields (essentially trade in goods); and reviewing the negotiating history of the TRIPS Agreement. She would present these views in more detail to Members at the next meeting. Her delegation supported the suggestion made by Hong Kong, China that it could be valuable to present specific dispute scenarios to help give form and substance to this discussion and she encouraged those with an interest in the issue to come forward with them to help the Council's work proceed.
