TWN Info Service on WTO and Trade Issues (Dec22/11)
19 December 2022
Third World Network

WTO: TRIPS Council chair adopts anti-developing country positions
Published in SUNS #9713 dated 19 December 2022

Geneva, 16 Dec (D. Ravi Kanth) — The chair of the World Trade Organization’s TRIPS Council, Ambassador Lansana Gberie of Sierra Leone, has allegedly sided with the major pharmaceutical-producing industrialized countries by denying the demands of a large majority of developing countries to include their proposed amendments concerning the TRIPS decision extension on diagnostics and therapeutics to the WTO’s General Council, said people familiar with the development.

More worryingly, the WTO, due to the “stonewalling” tactics adopted by the major industrialized countries that host Big Pharma, failed to extend the 12th ministerial conference (MC12) Ministerial Decision on the TRIPS Agreement to cover the production and supply of COVID-19 diagnostics and therapeutics, whose deadline expires on 17 December.

At an informal TRIPS Council meeting on 15 December, Ambassador Gberie is understood to have vehemently refused to include language proposed by around 99 developing and least-developed countries in the chair’s draft revised proposal to the General Council, telling Egypt, India, and Sri Lanka that he will not hold an urgent meeting as demanded by them on 16 December, said people who asked not to be quoted.

During the meeting, Ambassador Gberie apparently chose to adopt allegedly “irrational” and rather “arrogant” positions in the face of demands from the majority of developing countries asking for their proposed language to be incorporated in the chair’s draft revised proposal, particularly on its paragraph seven.

The 65 co-sponsors as well as the supporters of the original TRIPS waiver proposal also added a new paragraph eight, according to people who participated in the meeting.

Apparently, at one point during the meeting, in which the WTO’s Director-General, Ms Ngozi Okonjo-Iweala, briefly participated, the chair allegedly threatened the large majority of developing and least-developed countries that he will not incorporate their proposed amendments since they had made many allegations against him, said a participant, who asked not to be quoted.

TRIPS CHAIR’S “IRRATIONAL” POSITIONS

At the meeting, the chair presented his draft revised proposal of 14 December.

The draft revised proposal (Job/IP/65/Rev.1) circulated by the chair contains amended language in paragraphs 5 and 7, as follows:

1. (In paragraph 5 of the draft revised proposal, the chair said he amended language): “On 6 December 2022 a group of 65 Members tabled a proposal for the General Council to extend the Decision mutatis mutandis to COVID-19 therapeutics and diagnostics (IP/C/W/694). Other Members preferred to continue fact- and evidence-based discussions on whether there are IP- and TRIPS-related barriers to accessing COVID-19 therapeutics and diagnostics, and on the exact scope of a potential extension of the Decision.”
2. (In paragraph 7 of the draft revised proposal, the chair added): “In light of the above, discussions in the TRIPS Council will continue and will be reported to the General Council no later than 30 June 2023.”

The chair maintained that his draft revised report is to be adopted “as the Council’s report to the General Council scheduled for 19-20 December 2022.”

Apparently, a large majority of developing and least-developed countries rejected the chair’s revised draft at the meeting.

STAND ADOPTED BY THE CO-SPONSORS & SUPPORTERS

At the TRIPS Council meeting, the 65 co-sponsors and their supporters, who had submitted the original proposal for a comprehensive TRIPS waiver (IP/C/W/669) in October 2020 and later revised in May 2021 (IP/C/W/669/Rev.1), demanded that the chair must include the amendments they proposed in his draft revised proposal.

According to the participants, as the meeting remained inconclusive, the chair somewhat bluntly refused to call a meeting, as demanded by the co-sponsors and their supporters, for 16 December.

Ambassador Gberie apparently said that members should agree to what report he has submitted, adding that if they do not have consensus (on the chair’s draft revised report to the General Council) then he will not call for another meeting, said participants, who preferred not to be identified.

According to participants, the chair also said that he will call for a meeting if members agree to his draft revised text.

In response to the chair’s allegedly “irrational” stance, Egypt twice requested a meeting on 16 December. However, the chair rejected Egypt’s request.

Subsequently, South Africa asked for convening a meeting on 16 December, but the chair allegedly stuck to his “obstinate” position, said participants, who preferred not to be identified.

India apparently reminded the chair that he needs to be accommodative when so many members are asking for convening an urgent meeting on 16 December, but the chair seems to have turned a deaf ear, said participants, who preferred not to be quoted.

The developing countries, led by South Africa, India, Indonesia, and Sri Lanka among others, apparently asked as to how the chair arrived at his formulation that there is no consensus among members without even discussing the issue.

They also sought to know on what basis did he say that “discussions in the TRIPS Council will continue and will be reported to the General Council no later than 30 June 2023”.

Apparently, New Zealand proposed the formulation which is contained in paragraph 7 of the chair’s draft revised report, said a TRIPS negotiator, who asked not to be identified.

The developing and least-developed countries rejected the chair’s amended draft proposal and proposed additional language to be added to the chair’s draft.

The language proposed by developing countries seeking an immediate decision to extend “the Decision mutatis mutandis” in the amended chair’s draft is as follows:

1. (In paragraph seven of the chair’s draft proposal): “Some Members would like to continue discussions in the TRIPS Council and to report to the General Council no later than 30 June 2023. The majority of Members have called for the MC12 Decision to the TRIPS Agreement (WT/MIN (22)/30 [WT/L/1141]) to be extended mutatis mutandis for the production and supply of COVID-19 therapeutics and diagnostics in document IP/C/694.”
2. (In a new paragraph eight to be added to the chair’s draft proposal): “In so doing, Members acknowledge the leading role of the World Health Organization (WHO) in coordinating the global response in the fight against COVID-19, and therefore the WTO will benefit from the WHO’s expertise and advice with regard to the global state of therapeutics and diagnostics.”

Without incorporating the above amendments and convening any meeting on 16 December, the chair seems to have shot off his draft amended text to the General Council, in what appears to be an open defiance that was rarely seen in the WTO, said several participants, who asked not to be quoted.

It remains to be seen how the co-sponsors and their supporters will respond to the chair’s strategy of throwing the proverbial gauntlet down, said people, who asked not to be quoted.

MAJOR NORTH COUNTRIES SUPPORT CHAIR’S REVISED PROPOSAL

It appears the WTO on 15 December apparently failed to deliver on one of the major MC12 decisions to extend the Ministerial Decision on the TRIPS Agreement to “cover the production and supply of COVID-19 diagnostics and therapeutics”, despite the strenuous efforts of around 99 developing and least-developed countries to extend the decision “mutatis mutandis” by 17 December.

Major industrialized countries, particularly Switzerland and the United Kingdom, which host Big Pharma, initially appear to have said that they do not want any decision on paragraph 8 of the Ministerial Decision. It appears that later they have allegedly hidden behind an ambiguous chair’s draft, said people who asked not to be quoted.

Two other key members – the United States and the European Union – apparently supported the chair’s proposed language that “discussions in the TRIPS Council will continue and will be reported to the General Council no later than 30 June 2023.”

The chair’s amended draft proposal was endorsed by Switzerland, the European Union, the United Kingdom, and the United States at the informal TRIPS Council meeting on 15 December.

The industrialized countries praised the chair’s efforts in drafting this brief and factual report and were in favour of adopting it without any changes as it had been the result of a long process of consultations.

According to these countries, no drafting suggestions had been received since Friday last week.

The chair is understood to have said that he would convene a TRIPS Council meeting on Friday if there is consensus on the proposed amendments.

In the event of a lack of consensus, the chair informed members that he would submit a report in his own name to the General Council for its consideration next week.

The large majority of developing and least developed countries seeking changes to the chair’s draft report said that the issue at stake is sufficiently important to use the remaining hours, including the weekend, to try and find common ground on the factual report before the 17 December deadline and the meeting of the General Council next week.

However, the industrialized countries seemed skeptical of the approach adopted by the 99 developing and least- developed countries. +