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TWN
Info Service on WTO and Trade Issues (Oct21/18) Geneva, 14 Oct (D. Ravi Kanth) – The opponents of the temporary TRIPS waiver led by the European Union have made overtures that they could settle for a pragmatic solution on the waiver, a move that is yet to generate confidence among members about their real intentions, said people familiar with the development. While small-group discussions are taking place on finding a common solution on how the revised TRIPS waiver proposal or what parts of it will be incorporated in a final agreement, there are still persisting doubts as to whether it would be a one-off deal or a payment will be sought on other issues such as WTO reforms or fisheries subsidies, said people familiar with the discussions. The 64 co-sponsors of the TRIPS waiver proposal must remain on guard, even if they have to make compromises, against attempts to whittle-down the waiver proposal, said a capital-based official, who asked not to be quoted. This comes against the given track record of the developed countries on accepting a demand from a majority of developing countries under international pressure as had happened on the Decision on the implementation of paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health of August 2003 (IP/C/W/405) before the WTO’s fifth ministerial conference in Cancun, Mexico in September 2003. However, the subsequent Article 31bis Protocol of Amendment enshrined in the WTO’s TRIPS Agreement turned out to be so cumbersome and administratively burdensome for developing countries to implement. Little wonder that only two members tried to invoke that protocol. It is against this backdrop that the current overtures must be taken with a pinch of salt, said a person, who asked not to be quoted. The temporary TRIPS waiver seeks to suspend certain provisions in the TRIPS Agreement relating to copyrights, industrial designs, patents, and protection of undisclosed information for a period of three years for ramping up the global production of diagnostics, therapeutics, and vaccines across countries in combating the COVID-19 pandemic. For the past one year since the submission of the TRIPS waiver proposal by South Africa and India on 2 October 2020, the European Union, Switzerland, the United Kingdom, Japan, and Norway among others vehemently opposed the temporary waiver on “ideological” grounds. During the past 12 months, the opponents of the TRIPS waiver, driven by Big Pharma, repeatedly adopted “diversionary” tactics by repeatedly raising the same questions during the discussions in various TRIPS Council meetings. Due to the groundswell of support from former world leaders from more than 100 countries, parliamentarians, and international civil society organizations, the opponents seem somewhat compelled to clear the roadblock they had created at the behest of Big Pharma, said several people, who asked not to be quoted. The change
was visible at the informal Doha Trade Negotiations Committee (TNC)
meeting on 30 September, at the informal trade ministerial meeting
held in Paris last week, and at the G20 trade ministerial meeting
held in Sorrento, Italy, on 12 October. (See SUNS #9430 dated 5 October
2021, Prior to these meetings, small-group consultations among key members suggested that some shifts in positions by the key opponents of the waiver were noticeable on both scope and the coverage of products, said people familiar with the development. However, there is still no clarity as to where the landing zone is going to be on the TRIPS waiver due to continued differences in some aspects. Nevertheless, at the WTO’s TRIPS Council meeting on 13 October, the European Union suggested that there are “encouraging results”, without providing any details. A EU official said there was considerable discussion on issues concerning scope and implementation of the revised TRIPS waiver as well as details about the EU’s proposal relating to the use of compulsory licensing. The EU maintained that discussions were useful for understanding the positions of various delegations, and for identifying “important points of convergence”. The EU
said the results were encouraging, and the time has come to find agreement
“on the basis of the points of convergence, identified in our Brussels also echoed the G20 language by saying that the solution ought to be pragmatic, targeted, and effective in responding to the current needs while keeping intact the necessary incentives for innovation. The EU assured members that it would work constructively in small-group and bilateral discussions, insisting that it is ready to consider any other proposal that may contribute to a common solution. It said that the intellectual property aspects are only a part of the multi-pronged approach. The UK, which has also consistently opposed the TRIPS waiver on “ideological” grounds, said it is “encouraged by recent discussions on areas of convergence” in small-group sessions and welcomed further conversations that move the TRIPS Council towards evidence-based and pragmatic solutions. Norway, which is another opponent of the TRIPS waiver during the past 12 months, reiterated its support for the EU’s proposal. It noted that Brussels’ proposal is a useful contribution that merits further discussion without prejudice to discussions on other proposals or to the timing or format of any decisions on trade and health. Switzerland, which is a fierce opponent of the TRIPS waiver, said the recent consultations are useful, while urging members not to ignore the vital role of intellectual property rights (IPRs). Switzerland supported the EU’s proposal while raising doubts as to whether the TRIPS waiver could be an effective and expeditious measure to help the world fight the pandemic. Other members of the so-called “Friends of the System” group such as Singapore, Japan, Brazil, and Korea among others said they are ready to engage constructively and deepen the discussions on the EU proposal. The US, which supported the TRIPS waiver in May this year, spoke about the consensus-based nature of the WTO, and the complexity of the issues involved with the WTO’s 12th Ministerial Conference (MC12) coming up in less than one-and-a-half months. The US said unless members are able to make some real compromises, “we worry that there may be the possibility of no outcome, which would be extremely regrettable.” Colombia supported the US stance, saying that the extraordinary circumstances that the world is facing require extraordinary measures. It called for achieving a coordinated, holistic and pragmatic solution, through a technical discussion, which in terms of intellectual property,might include a waiver for vaccines as well as advances in terms of TRIPS flexibilities. CO-SPONSORS OF TRIPS WAIVER South Africa and India, which piloted the TRIPS waiver proposal more than a year ago, emphasized that the waiver provides the best solution for combating the pandemic. South Africa called for a comprehensive package on trade-related IP aspects, suggesting that it can be agreed at MC12, to be held in Geneva on 30 November-3 December. South Africa argued persuasively that the TRIPS waiver proposal remains an integral part of any successful outcome at MC12. It underscored the need to move beyond the binary approach between the waiver proposal and the proposal submitted by the EU. For South Africa, it will be important to ensure that members align the facilitated process under Ambassador David Walker from New Zealand and the TRIPS Council chair for a comprehensive package that includes the trade- related IP aspects through the waiver. Instead of treating the proposals as mutually exclusive, South Africa said that it has shown willingness to engage constructively with the view to finding a solution that will garner consensus. “We are
willing to explore every forum to find consensus with the members,”
said the South African delegate, urging “other members to follow this
approach and engage constructively with our proposed “Our objective is not to win a debate, but to reach a concrete outcome,” South Africa emphasized. It also expressed some disappointment over the lack of progress in the small-group discussions to move onto a text-based process to which all members committed months ago. Without naming any country, South Africa argued that some members in practice have chosen to forego this process and have favoured asking and repeating the same questions, notwithstanding the fact that the vast majority of the questions posed have been addressed many times. India expressed sharp disappointment over the tactics adopted by a handful of members, who invariably said that they are not convinced regarding the content and intent of the TRIPS waiver proposal. India emphasized that the vast majority of WTO members support a proposal that would provide manufacturers around the world the freedom to operate and scale up production of vaccines, leading to better accessibility and affordability. The TRIPS waiver proposal, India said, is a necessary ingredient of a multi-pronged approach to combat the pandemic and a crucial element of the WTO’s response that should come out of MC12. We must be seen as an organization willing to deliver on unprecedented issues during unprecedented times, the Indian delegate added. China said that it is also committed to actively participating in further consultations and joining efforts to find a balanced and effective solution based on the proposals currently on the table. The other co-sponsors of the TRIPS waiver proposal including Pakistan, Bangladesh, Bolivia, Cuba, Venezuela, Nigeria, Egypt, Indonesia, and Namibia demanded that the TRIPS waiver must be passed if the WTO wishes to provide a meaningful and credible response to the pandemic. Australia said it supports the TRIPS waiver not only as a way to send the message (of global solidarity and that the WTO has the ability to respond to a major global crisis), but also to affirm the rights of all members to overcome any IP barriers that emerge in responding to the pandemic. Australia
said all members agree that IP should not pose a barrier to accessing
COVID-19 health products, while expressing concern that some of the
entrenched views regularly expressed in the TRIPS Council are putting
at risk the ability to achieve consensus and find common ground on
this issue by MC12. It supported the continued discussion on TRIPS flexibilities as proposed by the EU but said that it should not be seen as a binary element to the waiver proposal. In short, it is imperative on the part of the co-sponsors to de-link the TRIPS waiver, which is a response to the COVID-19 pandemic, from other issues that are being tossed up for MC12. It is equally important that a decision on the waiver is finalized well before the start of MC12, said people, who asked not to be quoted.
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