Ambassador Alfredo Suescum (Panama)

Brésil

7 NON-VIOLATION AND SITUATION COMPLAINTS

106. We welcome the addition of the Kyrgyz Republic to the list of co-sponsors of document IP/C/W/385/Rev.1. As provided in that document, concessions under the TRIPS Agreement cannot be characterized as "market access" under GATT or GATS. The TRIPS Agreement, unlike other WTO agreements, is a sui-generis agreement designed to establish minimum standards of intellectual property protection. Complaints regarding measures pertaining to market access should be filed under relevant provisions of the GATT and the GATS; applying the non-violation remedy to the TRIPS Agreement is unnecessary to address these cases. 107. For cases in which a Member believes that the obligations of the TRIPS Agreement are not being properly fulfilled by another Party, Article 64 unambiguously establishes a dispute settlement mechanism which was invoked and duly used in cases before the dispute settlement body. Claims that the availability of non-violation and situation complaints (NVSCs) would prevent Members from evading their TRIPS obligations are not supported by evidence. 108. NVSCs can also threaten the use of flexibilities by Members, in violation of Articles 1, 7 and 8 of the TRIPS Agreement. They could jeopardize the use of exceptions and limitations for the development of laws to protect public health and affect the delicate balance of rights and obligations reached by the Agreement. 109. Furthermore, the fact that no consensus on the matter was reached during the negotiations of the Uruguay Round underlines that the negotiating parties were not convinced these types of complaints would contribute to the attainment of the goals of the TRIPS Agreement. The continuous renewal of the moratorium since 1999 shows that Members remain unconvinced of any benefit that could be brought by the application of non-violation and situation complaints. In short, the application of NVSCs to intellectual property disputes would generate systemic imbalances and reduce the legal certainty of multilateral IP law. 110. Consequently, we propose that the TRIPS Council recommend to the Ministerial Conference scheduled to be held in Buenos Aires that complaints of the type provided for under sub-paragraphs 1(b) and 1(c) of Article XXIII of GATT 1994 shall not apply to the settlement of disputes under the TRIPS Agreement.

IP/C/W/385/Rev.1;

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

36. The Chairman recalled that, at MC10, 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 and to make recommendations to MC11 in December 2017. This instruction mirrored the original mandate in TRIPS Article 64.3. The Council had discussed this matter at its three meetings last year. The discussion had been based in part on the following documents: a communication from the United States on "Non-Violation Complaints under the TRIPS Agreement" (IP/C/W/599); a revised and updated version of "Non-Violation and Situation Nullification or Impairment Under the TRIPS Agreement" (IP/C/W/385/Rev.1) and a draft decision on non-violation and situation complaints for consideration at the forthcoming Ministerial Conference (IP/C/W/607), sponsored by a number of other Members. As indicated in document IP/C/W/385/Rev.1/Add.3, the Kyrgyz Republic had most recently joined the co-sponsors of that document.

37. The previous TRIPS Council Chair, Ambassador Mero from Tanzania, had repeatedly noted that there had not been major changes in Members' positions since the Council had first discussed this issue in the late 1990s. Recent discussions had mostly served to repeat well-known positions. Positions in this regard had hardly evolved, let alone had they explored avenues of compromise.

38. The initial deadline for accomplishing this task had been 1999. The Council had been unable to recommend a permanent solution to this issue to Ministers, after 18 years of debate in this forum. He encouraged Members to share ideas as to how the Council could work towards fulfilling the Ministers' instructions in the remaining few months, and to prepare recommendations for MC11.

39. The representatives of Brazil; China; Chinese Taipei; Bangladesh on behalf of the LDC Group; Argentina; Switzerland; the Russian Federation; Egypt; India; the United States and Nigeria on behalf of the African Group took the floor.

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

IP/C/M/85, IP/C/M/85/Add.1