Ambassador Alfredo Suescum (Panama)

Bolivie, État plurinational de

6 NON-VIOLATION AND SITUATION COMPLAINTS

83. Bolivia considers that the concept of non-violation complaints is neither relevant nor applicable in the context of intellectual property. 84. The TRIPS Agreement is of a wholly different nature from the agreements on goods regulated by the GATT. The GATT establishes a system of rules aimed at removing obstacles to trade in goods, under which the benefits derive not from a monopolistic right but from a product-by-product tariff reduction process. Conversely, the TRIPS Agreement promotes an artificial monopoly which runs completely counter to this idea and which, at the time, was introduced into the WTO framework on the basis of a fragile equilibrium that proved detrimental to the developing countries in the long run. Forcing the applicability of non-violation complaints in the context of the TRIPS Agreement would make this imbalance even more damaging to the developing countries. 85. The adoption at national level of a concept of this kind would prejudge certain measures taken by States as possible infringements, which is not acceptable. States cannot be constrained in their ability to lay down intellectual property regulations or standards based on the TRIPS flexibilities, and the latter should not come under scrutiny on grounds of alleged impairment. As we stated on an earlier occasion, the mere fact of recognizing that exception would be unlawful in the case of Bolivia, where human rights standards take precedence over other norms; and it is common knowledge that many IPRs are under close scrutiny in various fora because of their negative implications for food security and access to medicines, for example. 86. Lastly, Bolivia endorses India's proposal to prohibit non-violation complaints in the TRIPS context.

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