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TWN Info
Service on WTO and Trade Issues (Apr26/16) Yerevan, 27 Apr (D. Ravi Kanth) -- Several countries on 24 April appeared to throw their support behind Bangladesh, Colombia, and India regarding a key agenda item at a TRIPS Council meeting on "Reflections on MC14 and the Issue of Non-Violation and Situation Complaints [NVSCs]" - specifically, the argument that NVSCs are not applicable under the TRIPS Agreement, according to participants familiar with the development. Despite the failure to extend the moratorium on TRIPS-related non-violation and situation complaints (NVSCs) at the recent World Trade Organization's 14th Ministerial Conference (MC14) in Yaounde, Cameroon, Bangladesh, Colombia, and India seemingly argued that the NVSC issue is not part of the TRIPS Agreement, said participants, who requested anonymity. In sharp opposition, the United States and Switzerland continued to raise intransigent concerns - having already blocked an outcome on this issue at MC14. During the WTO's regular two-day TRIPS Council meeting, which ended on 24 April, members discussed a proposal from Bangladesh, Colombia, and India, titled, "Reflections on MC14 and the Issue of Non-Violation and Situation Complaints." The three co-sponsors of the proposal stated that "following the expiry of the moratorium on TRIPS non- violation and situation complaints and the corresponding instruction for the Council to examine scope and modality for such complaints (document WT/L/1194) at MC14, the Council's agenda no longer contains a standing item on this subject." According to document WT/L/1194, adopted on 2 April and posted on the WTO's website, members "take note of the work done by the Council for Trade-Related Aspects of Intellectual Property Rights pursuant to our Decision of 17 June 2022 on "TRIPS Non-Violation and Situation Complaints" (document WT/L/1137), and direct it to continue its examination of the scope and modalities for complaints of the types provided for under subparagraphs 1(b) and 1( c) of Article XXIII of GATT 1994 and make recommendations to the 14th Ministerial Conference. It is agreed that, in the meantime, Members will not initiate such complaints under the TRIPS Agreement." As per document WT/L/1137, adopted on 17 June 2022 at the WTO's 12th Ministerial Conference (MC12) in Geneva, ministers "take note of the work done by the Council for Trade-Related Aspects of Intellectual Property Rights pursuant to the General Council Decision of 10 December 2019 on "TRIPS Non-Violation and Situation Complaints" (WT/L/1080), and direct it to continue its examination of the scope and modalities for complaints of the types provided for under subparagraphs 1(b) and 1( c) of Article XXIII of GATT 1994 and make recommendations to the 13th Ministerial Conference. It is agreed that, in the meantime, Members will not initiate such complaints under the TRIPS Agreement." The three co-sponsors requested that their item be placed on the agenda because "the objective is to reflect on MC14 discussions and future course of action regarding the Decision on NVSC in the Council for TRIPS, pending negotiations and discussions on the "Yaounde emerging package" at the upcoming General Council." Against this backdrop, the three co-sponsors argued that despite the non-extension of the TRIPS moratorium at MC14, TRIPS non-violation and situation complaints were non-applicable under the TRIPS Agreement, said participants familiar with the development. They apparently explained that the TRIPS-NVSC issue has two parts: one on scope and the other on modalities. The duration of the moratorium on TRIPS-NVSCs implied that countries cannot raise disputes during the two-year period, as has been the case following every biennial WTO ministerial meeting, said participants familiar with the development. Further, they appear to have argued that regardless of the failure to reach an agreement at MC14 - where members could not finalize the decision on both the duration of the moratorium and scope of the TRIPS-NVSC issue - the substantive issue remains on the scope and modalities. Without any agreement on the scope and modalities, NVSCs are not applicable under the TRIPS Agreement, said participants who asked not to be quoted. The three countries seemingly pointed out that the TRIPS moratorium was only a political commitment not to initiate any trade disputes, said participants who asked not to be quoted. Many countries - including Brazil, Cambodia, Peru, Thailand, the least-developed countries (LDCs) and China - appeared to support the strong arguments advanced by Bangladesh, Colombia, and India that without an agreement on the scope and modalities, NVSCs are non-applicable under the TRIPS Agreement, said participants who asked not to be quoted. To bolster their case, the three countries apparently quoted interventions made by Canada and Hungary in 1999 - before the first TRIPS moratorium was in place - that NVSCs were in any case inapplicable, said participants who asked not to be quoted. US-SWISS AXIS In response to the above arguments, the United States and Switzerland, in separate interventions, apparently stressed that NVSCs are applicable - even without an agreement on the scope and modalities, said participants, preferring not to be quoted. However, the US and Switzerland seemingly failed to garner support for their case, with the non-applicability argument appearing to have become the dominant narrative. "In a future potential panel on a TRIPS-NVSC dispute, the two opponents - the US and Switzerland - will have an uphill barrier to overcome in the discussion on not having scope and modalities," said a proponent of the three countries. Significantly, members also discussed whether the issue of scope and modalities should remain a permanent agenda item in the TRIPS Council meetings. Apparently, the US and the WTO Secretariat said that the item cannot be part of the TRIPS Council agenda, according to participants familiar with the development. However, many participants appear to have argued that a negotiated solution at the General Council - as part of any potential package that would include the moratorium on customs duties on electronic transmissions, which expired at the end of March, and other issues - could be preferable to legal wrangling on the issue, said participants who asked not to be quoted. To recall, at MC14, India circulated a draft ministerial statement on the TRIPS moratorium. It states: "The Ministerial Conference decides as follows: We take note of the work carried out by the Council for Trade-Related Aspects of Intellectual Property Rights pursuant to our Decision of 2 March 2024 on "TRIPS Non-Violation and Situation Complaints" (WT/MIN(24)/39; WT/L/1194), and direct it to continue its examination of the scope and modalities for complaints of the types provided for under subparagraphs 1(b) and 1( c) of Article XXIII of GATT 1994 and make recommendations to the 16th Ministerial Conference. It is agreed that, in the meantime, Members shall not initiate complaints of the types provided for under subparagraphs 1(b) or 1( c) of Article XXIII of GATT 1994 in relation to the TRIPS Agreement." However, the US appears to have made clear that it will not agree to any extension of the moratorium on TRIPS non-violation and situation complaints - a position apparently supported by the United Kingdom and Switzerland, said participants familiar with the discussions. Hard discussions took place between the proponents of the TRIPS moratorium and the US, but the final decision remained unclear at the time of writing, said people familiar with the development. In all probability, India and other proponents of the TRIPS moratorium could agree to a four-year duration on the e-commerce moratorium if the same is agreed on the TRIPS moratorium, said participants familiar with the positions of the two sides. In another TRIPS-related issue, Bangladesh, Colombia, Egypt, and India issued a "draft Ministerial Declaration on TRIPS for Development", which calls on the TRIPS Council "to undertake and finalize its first review under Article 71 on the implementation of the TRIPS Agreement." The draft said, "pursuant to paragraph 19 of the Doha Ministerial Declaration, we instruct the Council for TRIPS to expedite ongoing work to examine the relationship between the TRIPS Agreement and the Convention on Biological Diversity, and the protection of traditional knowledge and folklore." The draft called on "the TRIPS Council to examine how the TRIPS Agreement could facilitate transfer and dissemination of technologies to developing countries including LDCs." More importantly, the four countries emphasized that the TRIPS Council should "examine the TRIPS Agreement, the Doha Declaration on the TRIPS Agreement and Public Health of 2001 and the Ministerial Decision on the TRIPS Agreement of 2022, to review and build on the lessons learned during COVID-19, with the aim to address the concerns of developing countries including LDCs in the context of health emergencies including pandemic." The four countries said: "In undertaking this work, the TRIPS Council shall be guided by the objectives and principles set out in Articles 7 and 8 of the TRIPS Agreement and shall take fully into account the development dimension and shall provide a report on the progress made, including any recommendations, to the Ministers at the 14th Ministerial Conference." +
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