2. The Chairman informed the Council of the results of the informal consultations which the Council had agreed he should hold on this matter. In document IP/C/W/2, he had made suggestions for the rules of procedure of the Council for TRIPS. These were that the Council should adopt, subject to confirmation by the General Council, rules of procedure which followed those for the General Council itself, with the same modifications as had been agreed for the Council for Goods, plus one other point: Rule 5, which would require a second circulation of the proposed agenda one or two days before the meeting, could be dropped, as being a bureaucratic burden which added little that was of value to delegations. Since the proposed Rules of Procedure for the Council for TRIPS had been circulated as document IP/C/W/2, the question had arisen whether Rule 33 was consistent with Article 71.2 of the TRIPS Agreement. This Article provided that, under the special circumstances set out in that provision, a proposal for amendment of the TRIPS Agreement could only be referred for further action on the basis of consensus in the Council for TRIPS. The point had been made that Rule 33 might, however, appear to allow for further action also if no consensus on such a proposal could be arrived at in the Council for TRIPS. During the course of the consultations, it had been thought desirable to obtain a legal opinion on this matter from the legal services of the Secretariat. As a result, the Legal Affairs Division of the WTO Secretariat had provided the following opinion:
"According to Article IV:1 and 2 of the WTO Agreement the General Council has the authority to take decisions on all matters under any of the Multilateral Trade Agreements, if so requested by a Member. The General Council may exercise this authority not only at the request of an individual Member but also at the joint request of Members expressed in a decision of one of the Councils overseeing the functioning of the Multilateral Trade Agreements. Article IV:1, second sentence of the WTO Agreement makes clear that the General Council, when responding to such a request, must act "in accordance with the specific requirements for decision-making in this Agreement and in the relevant Multilateral Trade Agreement". The mere fact that a matter is referred by the Council for TRIPS to the General Council for decision thus does not change the applicable decision making requirements. This means that the General Council, if a matter were to be referred to it in accordance with Rule 33 of the proposed Rules of Procedure for Meetings of the Council for TRIPS, would have to take its decision in accordance with the specific requirements for decision-making that the TRIPS Agreement imposes in respect of that matter."
Further consultations on this matter had indicated that there might nonetheless be some outstanding issues. In light of the situation, he suggested that the Council adopt the rules of procedure as contained in document IP/C/W/2, subject to the conclusion of a mutually agreeable solution to the particular issue concerning Rule 33 and its relationship to Article 71.2 and subject of course to the approval of the General Council. Since it had seemed from his consultations that this particular problem had implications which went beyond the scope of the TRIPS Agreement as such, he suggested that the Council mandate him to draw the matter to the attention of Ambassador Kesavapany, the Chairman of the General Council, and to discuss with him the most appropriate way of solving the issue.