Compte rendu ‒ Conseil des ADPIC ‒ Afficher les détails de l'intervention/la déclaration

Ambassador Al-Otaibi (Kingdom of Saudi-Arabia)
102. As a co sponsor of document IP/C/W/385/Rev.1, Argentina still considers that the non violation and situation complaints identified in Article XXIII:1(b) and (c) of the GATT 1994 are not applicable to the TRIPS Agreement. 103. Complaints of this type are inherent in agreements where there is an exchange of concessions and where the parties reciprocally assume obligations that are directly linked to market access. In this context, the agreed concessions can be nullified or impaired by non tariff measures. 104. The TRIPS Agreement is not a market access agreement but rather establishes minimum standards of intellectual property protection. Therefore, there can be no nullification of a benefit if there is no violation or infringement of an agreed rule. 105. The possibility of a non violation or situation complaint would give rise to uncertainty as to the legality of governmental measures which a Member might legitimately adopt. It would also open up the possibility of such measures, even when they were legal and legitimate, being called into question by other Members. Furthermore, such complaints would upset the balance of rights and obligations which exist under the TRIPS Agreement. 106. The Argentine delegation therefore supports the proposal contained in paragraph 57 of document IP/C/W/385/Rev.1 that this Council recommend to the Ministerial Conference that complaints of the type provided for under Article XXIII:1(b) and (c) of the GATT 1994 should not apply to the settlement of disputes under the TRIPS Agreement.
The Council took note of the statements made and so agreed.
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.

6.2. He recalled that Members had discussed the matter at the three meetings that the Council had held in the course of last year, as well as at its last meeting in February when the Council again had agreed to revert to this matter at the present meeting. In particular, a communication on "Non-Violation Complaints under the TRIPS Agreement" that had been 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 last two meetings.

6.3. Since its last meeting in February, the Council had received a revision of a communication on "Non-Violation and Situation Nullification or Impairment Under the TRIPS Agreement" that had been circulated on 30 October 2002. The revised submission (circulated in document IP/C/W/385/Rev.1) was co-sponsored by a number of TRIPS Council Members (Argentina, the Plurinational State of Bolivia, Brazil, China, Colombia, Cuba, Ecuador, Egypt, India, Indonesia, Kenya, Malaysia, Pakistan, Peru, the Russian Federation, Sri Lanka and the Bolivarian Republic of Venezuela).

6.4. He said that the Council was mandated to provide its recommendations on scope and modalities to the Nairobi Ministerial Conference; the Council's meeting in October would therefore be the last scheduled opportunity to conclude these recommendations. He therefore urged delegations to provide guidance on how the Council could conclude its substantive work on this matter, which had been originally mandated in the TRIPS Agreement for the Council to conclude in 1999.

6.5. The representatives of Brazil; Bangladesh on behalf of the LDC Group; Ecuador; Argentina; India; South Africa; Colombia; Cuba; the Bolivarian Republic of Venezuela; Lesotho on behalf of the Africa Group; Chile; Switzerland; Peru; Nepal; Indonesia; Pakistan; China; the Republic of Korea; Norway; Tanzania; the Russian Federation; Egypt; Japan; Chinese Taipei; Uruguay; Hong Kong, China; Canada; the United States and Barbados on behalf of the ACP Group took the floor.

6.6. The Chairman recalled that there was only one more formal meeting of the Council left to respond to the instruction by Ministers that draft recommendations be prepared by the next Ministerial Conference. This should be of particular concern to delegations, given that there were still no concrete proposals on the table as to how the Council might prepare the recommendations. He therefore suggested that the Chairman be requested to hold consultations before the matter would be raised again at the next meeting with a view to enabling the Council to agree on its recommendation to the Nairobi Ministerial Conference at that meeting.

6.7. The Council took note of the statements made and so agreed.

IP/C/M/79, IP/C/M/79/Add.1