82. The Chairman recalled that, at its meeting of 30 August 2003, the General Council had adopted the decision on "Implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health" (WT/L/540). Paragraph 11 of the Decision provided that the Decision, including the waivers granted in it, should terminate for each Member on the date on which an amendment to the TRIPS Agreement replacing its provisions would take effect for that Member. Furthermore, it instructed the TRIPS Council to initiate by the end of 2003 work on the preparation of such an amendment with a view to its adoption within six months, i.e. by June 2004, on the understanding that the amendment would be based, where appropriate, on this Decision, and on the further understanding that it would not be part of the negotiations referred to in paragraph 45 of the Doha Ministerial Declaration.
83. He added that he had informed the Council, at its meeting in November, that he had intended to hold a series of informal consultations in various formats, in small groups as well as in open-ended sessions, on this subject prior to the present meeting of the Council. He had held the first round of consultations in small groups in December to find out how delegations wished to proceed on the amendment issue. Having given delegations further time to reflect, he had held another round of consultations in early February, again using the small group format. At an open-ended informal meeting on 4 March 2004, he had reported to Members on these two rounds of consultations and had heard their views on this subject in the broader setting. He said that he would attempt to summarize to Members the main strands of the views and ideas that he had heard so far, but noted that, inevitably, this summary would not be able to capture every nuance of every position. He added that, in the second round of consultations that he had held, he had invited delegations to express their views under three headings, namely the content of the amendment, the legal form of the amendment, the legal form that the amendment should take and the timing of the amendment. He said that he would structure his summary under these headings.
84. The Chairman said that, with regard to the content of the amendment, one issue was the treatment of the Chairman's statement. Some delegations had advocated that the Chairman's statement, as well as the Decision, should be reflected in the amendment in a manner that would not alter the substance of the texts nor their legal status, arguing that the two were integral parts of the agreement reached in August 2003. Some others had believed that the Chairman's statement should not form part of the amendment, arguing that to do so would give the Chairman's statement greater legal status in relation to the amendment than it had in relation to the Decision. Some of these delegations had indicated that they could envisage that the Chairman's statement might be reiterated by the Chairman of the General Council at the time that the General Council approved the amendment and opened it for acceptance by Members. Some others had been flexible about identifying elements in the Chairman's statement that could be incorporated in the amendment. A specific point of concern for some Members had been to avoid doing anything with the Chairman's statement that would change the voluntary nature of the partial opt-outs on the part of some Members that had been referred to in the statement.
85. Some Members had indicated that, in their view, there might be parts of the Decision which were not appropriate for the amendment, and that there may be elements which might need to be improved upon or added to in the light of the experience. Some other Members had stressed that, in their view, the amendment process should be a technical exercise and that the substance of the Decision should not be re-opened.
86. As regards legal form, some delegations had indicated a preference for the use of a footnote to Article 31 which would have the effect of making it clear that this was subject to the provisions of the Decision and of the Chairman's statement. It had been explained that those texts would not be reproduced in the footnote but incorporated by being referred to within it. Some delegations had expressed a preference for full incorporation of the relevant provisions of the Decision in the text of the TRIPS Agreement. The approaches mentioned for the legal form of an amendment of this nature included the incorporation in the TRIPS Agreement of an Article 31bis, or an annex, or a footnote to Article 31 referring to an annex. Many delegations had indicated that if they were satisfied with the content of the amendment they might have greater flexibility with regard to legal form.
87. Questions had been raised by a number of delegations about whether it would be legally possible to amend the TRIPS Agreement through the use of footnotes. He recalled that he had made available the Secretariat's Legal Affairs Division's informal note on this subject. At the open-ended informal meeting on 4 March 2004, some more questions had been directed to the Secretariat's Legal Affairs Division. The Chairman had discussed these with the Secretariat which would prepare an addendum to the note to be circulated in due course. He emphasized that there were limits to how much the Secretariat could provide in terms of opinion, advice or input. Ultimately, it was up to Members to resolve this issue in a manner they saw best.
88. As regards timing, he said that quite a number of delegations had expressed the view that it was more important to get the amendment right than to rush it, and that it would be desirable to leave more time to learn from experience with the operation of the mechanism. One idea had been to extend the time-frame by the amount of time that the adoption of the Decision had been delayed, i.e. by nine months. Others had not mentioned a new time-frame but had indicated that it should be sufficient for there to be a useful body of experience to learn from. The view had also been expressed that it was important to meet the deadline and to make every serious effort to do so.
89. The Chairman said that his consultations had revealed that there seemed to be significant differences among delegations in regard to the substantive content and the legal form that an amendment to replace the paragraph 6 Decision should have, although many delegations had emphasized that they remained ready to consider alternative solutions. This seemed to indicate that it was unlikely that Members would be able to come to a conclusion on this matter at the present TRIPS Council meeting and that further work would be required. He suggested that his successor hold further consultations before the Council's June 2004 meeting.
