Ms Irene Young (Hong Kong, China)

Brésil

7 NON-VIOLATION AND SITUATION COMPLAINTS

97. Brazil would like to reiterate its understanding that non violation and situation complaints should not be applied to the TRIPS Agreement. While we thank Switzerland for their statement, we remain unconvinced by the arguments presented today. 98. For the cases where a Member assesses that the obligations of the TRIPS Agreement are not being properly fulfilled by another party, Article 64 of TRIPS unambiguously establishes a dispute settlement mechanism which could be invoked and duly used in cases before the Dispute Settlement Body. Claims that the availability of NVSC would prevent Members from evading their TRIPS obligations are not supported by evidence and no concrete cases were presented up to date by demanders. 99. As provided in document IP/C/W/385/Rev.1, concessions under the TRIPS Agreement cannot be characterized as "market access" under GATT. The TRIPS Agreement, like other WTO agreements, is a sui-generis treaty 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. The sui generis nature of intellectual property with regard to the standards set in GATT led the negotiators of the Uruguay Round to the TRIPS Agreement, instead of including intellectual property provisions as amendments to the GATT. 100. Furthermore, the fact that no consensus on the matter was reached during the negotiations of the Uruguay Round underlines the fact that negotiating parties were not convinced that it 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. 101. In short, the application of such complaints to intellectual property disputes would generate systemic imbalances and reduce the legal certainty of multilateral IP law, a result that would conflict with the very goal of the multilateral trade system. Its necessity has not been established by demandeurs until this moment, and its application is opposed by the vast majority of WTO Members. 102. Consequently, we propose that the TRIPS Council recommend to the Ministerial Conference that complaints of the type provided for under subparagraphs 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 this matter, at its next meeting.

20. The Chairperson recalled that, at the tenth Ministerial Conference in December 2015, Ministers had directed the Council to continue its examination of the scope and modalities for complaints of the types provided for in Article XXIII 1(b) and 1(c) of the GATT 1994, and to make recommendations to the eleventh Ministerial Conference, scheduled to take place in December 2017. That instruction had mirrored the original mandate, contained in Article 64.3 of the TRIPS Agreement, which had set 1999 as the deadline for accomplishing this task. She noted that, so far, the Council had not yet been able to find a solution. She urged Members to provide more concrete ideas on how the Council could work towards fulfilling the mandate and on a recommendation for the eleventh Ministerial Conference, which would take place in merely six months. She noted that existing positions of Members were well documented, so there was no need to repeat them.

21. The representatives of Switzerland; India; Brazil; Argentina; the Plurinational State of Bolivia; South Africa; China; Ecuador; the United States; Japan; and, Sri Lanka took the floor.

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

IP/C/M/86, IP/C/M/86/Add.1