Ms Irene Young (Hong Kong, China)

Afrique du Sud

7 NON-VIOLATION AND SITUATION COMPLAINTS

106. We thank Switzerland for its intervention in this regard and we place it on record that we do not agree with many of the basis of arguments that Switzerland advances, more specifically, in respect of the negotiating history. We believe that the issue of non-violation complaints is necessarily an outstanding issue, unfinished business which was not agreed during the Uruguay Round and as a result, the GATT-ability of the TRIPS Agreement vis-à-vis the GATT has always been on the table, and the current debate around this issue is a confirmation of this. Without belabouring the arguments that have been presented in the past this delegation has many times indicated that non-violation and situation complaints are unnecessary and should not apply in the context of the TRIPS Agreement. 107. Specifically, we are further inclined to interpret Article 64.2 to mean that in case the moratorium on the application of non-violation and situation complaints is not extended in 2017, the complaints would not automatically apply to the TRIPS Agreement. Under a strict reading of Article 64.2, these disputes cannot apply until Members agree to the scope and modalities of their application in respect of the TRIPS Agreement.

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