TWN Info Service on WTO and Trade Issues (Jul21/08)
8 July 2021
Third World Network

Progress in TRIPS waiver talks despite new hurdles created by EU
Published in SUNS #9383 dated 8 July 2021

Geneva, 7 Jul (D. Ravi Kanth) – Amidst the groundswell of international support for the proposed TRIPS waiver at the World Trade Organization, the proponents of the waiver on 6 July expressed confidence and optimism on the progress being made in the ongoing small-group consultations in paving the way for an outcome on the waiver, said people familiar with the development.

However, the European Union seems to have gone back on its assurances of constructive engagement in the small- group consultations on the revised TRIPS waiver proposal, and appears to be creating new hurdles in an act of bad faith, said people, who asked not to be quoted.

At an informal WTO TRIPS Council meeting on 6 July, the key interlocutors who are engaged in the small-group consultations, except the European Union, delivered upbeat assessments about the overall progress in the discussions so far.

South Africa provided a snapshot of the discussions involving issues such as the duration of the waiver and the implementation of the agreement on the waiver and recourse to the “solution-finding mode”, said people, who asked not to be quoted.

The revised temporary TRIPS waiver proposal seeks to suspend the implementation of certain provisions in the TRIPS Agreement relating to copyrights, industrial designs, patents, and trade secrets for a period of at least three years for ramping up production of diagnostics, therapeutics, and vaccines across countries.

Members increasingly veered around the view that the small-group consultations proved to be interactive while allowing them to engage in detailed exchanges on the substantive issues underlying the revised waiver proposal.

Apparently, there is broad acknowledgment that intensified discussions would lead to a deeper engagement on a number of substantive points.

TRIPS CHAIR’S REPORT

In his introductory remarks at the TRIPS Council meeting, the chair, Ambassador Dagfinn Sorli from Norway, suggested that discussions on the duration of the waiver clarified the intended operation of the waiver as well as the termination clause in the revised text.

The discussions also clarified the annual review as suggested in the revised textual proposal on the waiver.

According to the chair, members engaged constructively on the issue of implementation and also on a number of specific issues/questions.

The chair said there has not been enough time to complete the discussion on these two topics, suggesting that it is an area where members may need to revisit in upcoming meetings.

Notwithstanding some divergences, the chair expressed confidence that the substantial exchanges over the past few days will contribute to a clearer understanding of each other’s positions, assisting members in collectively identifying elements of convergence.

The chair said that he plans to convene another small-group consultation on 9 July to continue addressing the topic of implementation, as there were a number of questions that could not be addressed due to lack of time.

Ambassador Sorli proposed to take up a topic raised by some countries on the issue of regulatory data, especially the need for sharing trade secrets to be included in the scope of the revised waiver proposal.

Apparently, some members mentioned their concerns about the disclosure of protected data from a long-term point of view. Suggestions were also made about limiting the impact of the disclosure of data during the waiver period, said people, who asked not to be quoted.

More small-group meetings are being scheduled for 14 July and a formal meeting on 20 July for stock-taking of the progress made.

CO-SPONSORS OF TRIPS WAIVER

At the meeting, South Africa clarified several issues concerning the revised TRIPS waiver proposal in document IP/C/W/669/Rev.1, namely the minimum duration period of three years from the date of the decision.

The South African delegate suggested that the waiver would not automatically terminate after three years, but only after a review by the General Council on whether the exceptional circumstances that existed when the waiver was initiated continued to exist at that particular point in time.

Given the mutation of the Sars-CoV-2 virus in different countries, the World Health Organization cautioned about the rapidly spreading Delta virus, suggesting that the pandemic is worsening in several countries.

South Africa cited various international indicators, especially those guidelines and benchmarks set by the World Health Organization about the prevalence of pandemic conditions in one or many countries.

According to South Africa, the prevailing pandemic situation does not call for a one-size-fits-all approach due to new variants that are surfacing in countries.

The South African delegate said that there is no clarity yet as to what proportion of any given population would need to be vaccinated to achieve herd immunity, how long vaccines will be effective, and when and how booster doses will be needed in developed countries with high vaccination rates.

As regards the implementation of the waiver, South Africa said that given the diversity of legal systems in WTO member countries, the national implementation of the waiver would depend on a country’s political and constitutional arrangements, said a person, who preferred not to be quoted.

South Africa argued that once the waiver is approved, emergency and disaster management legislation could be relied upon to implement it into national laws.

South Africa expressed confidence and optimism following the latest round of discussions.

It said that consultations were focused on a solution-finding mode.

Despite members still not being of one mind in respect of the initial positions, they are finding each other on many issues, South Africa said.

PAKISTAN’S INTERVENTION

Pakistan, another major proponent of the TRIPS waiver proposal, lamented that some members who are opposed to the waiver, keep raising the same issues all over again.

Notwithstanding the substantial answers provided to questions raised by the opponents to the waiver in documents IP/C/W/671 and IP/C/W/672, Pakistan said that the continuous circulation of the same questions are not helpful for meaningful and constructive engagement.

Pakistan’s delegate suggested that it appears that the can is being kicked around in a circular mode.

Pakistan urged members to meaningfully address the text-based elements of the proposal and provide constructive ideas for changes in the text.

Pakistan called on the European Union to suggest a text-based proposal on technology transfer that goes beyond clarifying already available provisions in the TRIPS Agreement.

Pakistan said the co-sponsors are happy to engage with members and consider all proposals on their own merits and conclude them on their own procedural and legal means.

Apparently, the EU and other developed countries suggested that the draft declaration proposed by Brussels should be treated on an equal footing as the waiver request.

INDIA’S STATEMENT

In a similar vein, India said that the small-group meetings were useful in taking the discussions forward.

India thanked the members’ input as it has contributed to improving the waiver and to arriving at a landing zone.

The Indian delegate reported on the outreach efforts being undertaken by the proponents of the waiver proposal, engaging bilaterally with several members to explain in detail the reason and rationale behind the proposal with an aim to respond to all the concerns raised.

In the discussions, the co-sponsors of the TRIPS waiver proposed to some members to engage bilaterally on the text and outlined the differences in a focused manner.

India said that there seems to be little enthusiasm among some members to engage bilaterally to discuss the text.

China reiterated its support for the TRIPS waiver proposal and the text-based negotiations.

China thanked the co-sponsors of the revised waiver proposal for their responses and the clarification to concerns raised on duration and implementation (of the waiver) at the meeting on 5 July.

China said that it will continue to actively engage in all forms of discussions with all members, aiming to reach a balanced solution as soon as possible.

It said that through collective efforts, members will be able to find a satisfactory solution to tackle the pandemic from the perspective of intellectual property rights.

US STATEMENT

In a brief statement, the US sought clarity on the duration of the waiver, namely, how the current waiver proposal complies with the requirements set forth in Article 9.4 of the Marrakesh Agreement given the absence of a concrete termination date.

Article 9.4 of the Marrakesh Agreement states that “a decision by the Ministerial Conference granting a waiver shall state the exceptional circumstances justifying the decision, the terms and conditions governing the application of the waiver, and the date on which the waiver shall terminate.”

South Africa clarified by referring to the waiver decision of 30 August 2003 (the decision that led to the Art. 31bis mechanism) which also did not fix a definitive termination date, as it states that the waiver “shall terminate for each Member on the date on which an amendment to the TRIPS Agreement replacing its provisions takes effect for that Member”, and in some WTO member states, the 30 August 2003 waiver continues to be applicable as the addition of Art. 31bis by amending the TRIPS Agreement has yet to enter into force for several WTO members.

The US delegate maintained that discussions to date have shown that there is a willingness to keep an open mind and consider all possible solutions in light of their potential effectiveness.

HURDLES CREATED BY THE EU

The EU stuck to its rather dismal assessment of the waiver, suggesting that there is great concern from a number of delegations with regards to the revised waiver proposal.

So far, the revised TRIPS waiver proposal has been supported by almost two-thirds of the WTO members, more than 400 international civil society organizations, parliamentarians as well as 100 US Congress persons, Nobel laureates, and former leaders.

In the face of dwindling support for the EU’s own proposal, it unabashedly claimed its draft declaration (IP/C/W/680) as an urgent trade policy response to the pandemic.

The EU said the draft declaration offers the only quick and feasible option to improve the international response to the pandemic.

It claimed that it will achieve the common goal of providing global equitable access to vaccines and other medical products across the world.

However, the EU’s claims were exposed during the previous TRIPS Council meetings on grounds that the draft declaration contained the same provisions as in Article 31 and 31bis of the TRIPS Agreement.

The EU was also told that its proposal has actually undermined the TRIPS flexibilities.

With the apparent hurdles being created largely by the EU for arriving at a concrete outcome based on the revised waiver proposal, the EU suggested that the TRIPS waiver discussions are not getting closer in terms of reaching a concrete outcome.

The EU stressed that if members want to go fast, they need to be pragmatic and really identify the issues where they can agree on and agree on the issues where they have fundamental divergences.

For the umpteenth time, the EU sought to know how the waiver proposal will help in enhancing access to vaccines, medicines and diagnostics needed to combat COVID-19.

It spoke about leveraging an existing point of convergence, namely, the need to rapidly and effectively enhance technology transfer as the most important element to increasing production in the short term.

However, the EU did not explain how the transfer of technology will be shared for rapid production of vaccines, said a person, who asked not to be quoted.

Brussels again criticized the waiver proposal on grounds that it creates legal uncertainty on the transfer of technology for the vaccine developers and manufacturers.

The EU, which is a strong advocate of “opaque” voluntary licenses and restrictive pricing agreements, has maintained that there is nothing wrong with the ongoing collaborations and licensing agreements for ramping-up production.

At a time when the world needs between 10-11 billion doses of vaccines, the EU seems determined to accentuate the growing inequalities in access to affordable vaccines on an equitable framework, said people, who asked not to be quoted.

The EU seems to be promoting the trade and health initiative that would put the profits of Big Pharma before human lives by proposing solutions that never worked in the past, said people, who asked not to be quoted.

The EU, according to some people, is trying to undermine the waiver proposal in a blatant attempt so as to promote its own proposal that has failed to garner support.

The United Kingdom noted the useful exchange of views during the small-group consultations but considered that several questions are still to be answered, such as how the different methods of national implementation would be conducive to legal certainty.