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

Ms Irene Young (Hong Kong, China)
Afrique du Sud
127. I refer to our statement at the informal meeting which was held on 16 October 2017. 128. In May 2003, the TRIPS Council chairperson had listed four possibilities for a recommendation on this issue: (1) banning non-violation complaints in TRIPS completely, (2) allowing the complaints to be handled under the WTO's dispute settlement rules as applies to goods and services cases, (3) allowing non-violation complaints but subject to special "modalities" (i.e. ways of dealing with them), and (4) extending the moratorium. 129. Most Members favour banning non-violation complaints completely (option 1) similar to the proposal by developing countries under IP/C/W/385, or extending the moratorium (option 4). At least one delegation has indicated its preference for option 3 – allowing non-violation complaints under the TRIPS Agreement. However as my delegation has stated in the past, this would be unacceptable for most developing countries and can impair the full use of the TRIPS flexibilities by developing countries. We reiterate our view that necessarily the proposal on scope and modalities for the applicability of non-violation and situation complaints should cover a recommendation that these types of complaints should not be applicable to the TRIPS Agreement. In the absence of any consensus on this matter we could support the text to extend this prohibition for further two years.
The Council so agreed.
28. The Chairperson recalled that, at the Tenth Session of the Ministerial Conference (MC10) 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 (MC11), scheduled to take place in December 2017. The Council had discussed this matter at each of its regular meetings since MC10. However, the discussions had not focused on the scope and modalities. Instead, Members had been debating whether or not non-violation and situation complaints should apply to the TRIPS Agreement at all. In that regard, views continued to be polarized.

29. Since the Council's meeting in June 2017, she had consulted with delegations in various formats, including at the informal meeting that had taken place on 16 October 2017, to see if the Council could come up with a recommendation. Most delegations that had shared their views had said that they did not think non-violation complaints should apply to the TRIPS Agreement. They had been, however, willing to compromise by agreeing to recommend an extension of the moratorium. At the same time, at least two delegations had said that they would like to see the current moratorium expire. They were of the view that non-violation and situation complaints would then apply to the TRIPS Agreement, and that the guidance contained in the DSU would be sufficient in handling disputes arising from the application.

30. Although no Member had submitted a textual proposal on the recommendation, during her earlier consultations one delegation had suggested that she make available a text showing what the Council's recommendation to MC11 would look like if it was to be, modelled on the MC10 decision (WT/L/976). At the Council's informal meeting of 16 October 2017, Members had agreed that such a text could also be used as the basis for further discussion at the Council's present meeting, on the understanding that it was meant only to facilitate discussion and was without prejudice to Members' positions. Accordingly, the text had been made available as an informal room document.

31. The representatives of Nigeria on behalf of the African Group; Thailand, China; the United States; the Plurinational State of Bolivia; South Africa; Brazil; Costa Rica; Switzerland; Australia; Chile; Canada; Ecuador; Japan; Argentina; the Republic of Korea; the Russian Federation; the European Union; India; New Zealand; Chinese Taipei; and Paraguay took the floor.

32. The Chairperson said that it was clear that the Council was not yet ready to agree on a recommendation. She suggested that the Council keep the agenda item open, while she continues to consult with Members. Once there was an indication that Members were in a position to reach consensus, she would reconvene the Council at short notice, so that a recommendation could be made through the General Council to the Ministerial Conference, in a timely manner.

33. The Council so agreed.

34. In closing, the Chairperson noted that the last General Council meeting before MC11 was scheduled to take place from 30 November to 1 December. Therefore, the Council's recommendation, which could be included in the TRIPS Council's Annual Report or its addendum, would need to be submitted to the General Council by 17 November. She requested Members to be mindful of the timeline.

IP/C/M/87, IP/C/M/87/Add.1