Info Service on WTO and Trade Issues (Oct15/17)
23 October 2015
Third World Network
South moots making non-violation complaints inapplicable to TRIPS
Published in SUNS #8115 dated 19 October 2015
Geneva, 16 Oct (D. Ravi Kanth) -- A large majority of developing and
the least-developed countries on Thursday (October 15) turned the
tables against the United States and Switzerland at the World Trade
Organization (WTO) by proposing that non-violation complaints shall
be made inapplicable to the Agreement on Trade-Related Aspects of
Intellectual Property Rights (TRIPS), several participants told the
Even a few developed countries such as Norway and New Zealand supported
this draft proposal from over 90 developing and least developed countries
for the Nairobi ministerial meeting declaring the inapplicability
of the non-violation complaints (NVCs) to the TRIPS agreement.
The United States and Switzerland, which called for the termination
of the moratorium on the NVCs, stood isolated at the meeting.
At an informal meeting of the WTO's TRIPS Council on Thursday October
15, over 90 developing and least- developed countries proposed a resolution
calling for a permanent moratorium for applying non-violation complaints
to disputes under the TRIPS agreement.
Peru, which proposed the resolution on behalf of developing and least-developed
countries, said that "there is a confluence of interests with
many members including the African and LDC [least-developed countries]
members who are not co-sponsors of the resolution."
"An overwhelming majority of countries now want that the NVCs
should be made inapplicable," Peru said.
Many countries such as Brazil, India, China, the Philippines, Thailand,
Russia, Chile, Norway, South Africa, Sri Lanka, Nepal, Korea, Cuba,
Indonesia, Argentina, Colombia, Egypt and Ecuador among others have
co-sponsored the proposal tabled by Peru.
India warned that "the application" of NVCs to the TRIPS
agreement will have a "chilling" effect on members and "the
flexibilities [in the TRIPS agreement] will be severely curtailed."
"There is a strong potential of IP [intellectual property] regimes
and practices in member-countries will be opened to [legal] challenges,"
"The cycle of moratoriums must end and the draft ministerial
decision [circulated by Peru] is the culmination of these efforts
to end the moratorium,' India maintained.
The European Union said it doesn't see any relevance of applying NVCs
to the TRIPS agreement. The EU maintained that if there is no consensus
on Peru's proposal, members must agree to extend the moratorium for
not applying the NVCs in the TRIPS context.
Norway said "applying non-violation and situation complaints
to the TRIPS Agreement would be particularly difficult and problematic
in relation to the principle of legal certainty."
"We are therefore of the view that non-violation and situation
complaints should be determined inapplicable to the TRIPS Agreement,"
Norway said, adding that "while we are not a co-sponsor, we strongly
support the content of the draft ministerial decision [proposed by
New Zealand also called for the inapplicability of NVCs to the TRIPS
Notwithstanding the overwhelming support from members for the draft
ministerial decision against the NVCs, the US and Switzerland stuck
to their position that the moratorium will be terminated at the Nairobi
"We will not support the ministerial decision, as well as the
moratorium," the US maintained, according to a participant present
at the meeting. "If there is no consensus on the continuation
of moratorium [at the Nairobi meeting] then NVCs will automatically
apply," the US warned.
Switzerland said the dispute settlement provisions provide sufficient
guidance to members for applying NVCs to the TRIPS agreement.
It remains to be seen how the large majority of developing and the
poorest countries will press their issue at Nairobi in the face of
opposition from the US and Switzerland.
On a separate issue concerning the demand for an indefinite waiver
from the TRIPS commitments, the US conveyed to the least-developed
countries on Thursday that any extension of the existing waiver from
implementing the commitments in the WTO's TRIPS agreement for pharmaceutical
products must be "time bound" and the duration of the waiver
must be negotiated.
Effectively, the US has rejected the demand from the poorest countries
for an indefinite exemption until they graduate from their current
LDC status, an African trade official told the SUNS.
During a meeting between the US and Bangladesh which coordinates the
LDCs at the WTO, the US trade envoy Ambassador Michael Punke has made
it clear that it will only agree to a "time bound" extension
in which the duration has to be negotiated, said a person familiar
with the meeting.
The LDCs have already made it known that they want an extension until
they graduate to a developing country status based on an economic
In the worst-case scenario, the LDCs are willing to consider extension
till 2030 in line with the United Nations Sustainable Development
Goals, the person said.
Faced with the inflexible American position, Bangladesh conveyed to
Ambassador Punke that it would consult with its members. The LDCs
are expected to inform the US soon about their final response on the
time bound exemption based on further negotiations.
Despite enormous pressure from the US lawmakers and international
pressure groups, the US along with Switzerland, Japan, Canada, and
Australia have continued to adopt a tough stand, while the EU is ready
to accept the LDCs' demand for an extension until graduation. +