Ambassador Mothusi Palai (Botswana)

Afrique du Sud

6 NON-VIOLATION AND SITUATION COMPLAINTS

143. South Africa, as a Member of the WTO, is fully committed to upholding its obligations and commitments as set out in the different WTO laws and regulations with specific reference to the TRIPS Agreement. The purpose and aim of Article XXIII is to ensure compliance with the GATT rules and principles by providing Members with an opportunity to make the claims should the situation provided for in sub-paragraphs 1(a) and 1(b) arise. This is different to the TRIPS Agreement. The TRIPS Agreement is a sui generis agreement, it is not aimed at promoting market access or harmonizing the standards of Members with regard to the protection and enforcement of intellectual property rights. It is there to provide the minimum standards of protection and enforcement on intellectual property rights. 144. The insertion of Article XXIII.1(a) and 1(b) of GATT 1994 under the TRIPS Agreement will undermine the sovereign rights of the respective Members in as far as putting in place the laws that will protect intellectual property rights within their borders are concerned. The insertion will further more restrict the flexibilities provided to Members and defeat the balance that has been maintained under the TRIPS Agreement. South Africa recognizes the need for the protection and enforcement of intellectual property rights, however we believe that the insertion of non-violation and situation complaints will not be practical under the TRIPS Agreement.

The Council took note of the statements made and agreed to revert to this matter at its next meeting.

6.1. The Chairman recalled that, at the Ninth Session of the Ministerial Conference, Ministers had directed the TRIPS 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 make recommendations to their next Session that would be held in Nairobi in December 2015. It had been agreed that, in the meantime, Members would not initiate such complaints under the TRIPS Agreement.1

6.2. Members had discussed the matter at the TRIPS Council's three meetings in 2014. In particular, a communication on "Non-Violation Complaints under the TRIPS Agreement" submitted by the United States (circulated in document IP/C/W/599) had served as the basis for an intense exchange of views at the meeting in October 2014, where the Council had agreed to revert to this matter at its next meeting. The Chairman had been in touch with some interested delegations, but they had not been in a position to report on any new developments. He invited delegations to share any thoughts on how the Council could best move forward on this matter in order to be in a position to agree in a timely manner on its recommendations to the next Ministerial Conference.

6.3. The representatives of United States; Bangladesh on behalf of the LDC Group; the Bolivarian Republic of Venezuela; Peru; Canada; Norway; Brazil; South Africa; China; Japan; Argentina; the Republic of Korea; Switzerland; Ecuador; Colombia; Egypt; Cuba; Chile; Chinese Taipei; Russian Federation; Nepal; India and Nepal took the floor.

6.4. The Chairman said that there were only two more formal meetings of the Council left to respond to the instruction by Ministers that draft recommendations be prepared by MC10. This should be of particular concern to delegations, given that the initial deadline for accomplishing this task was 1999 and that there were still no concrete proposals on the table as to how the Council might prepare the recommendations. Keeping the item on the agenda had not yielded any solution over the past 16 years.

6.5. The Council took note of the statements made and agreed to revert to this matter at its next meeting.

IP/C/M/78, IP/C/M/78/Add.1