On 24 July 2015, 17 Members of the World Trade Organization (WTO) tabled a draft Ministerial decision (published by the WTO secretariat on 29 July 2015) on “Non-violation and situation complaints” for “consideration at the 10th Ministerial Conference of the WTO” (Source: IP/C/W/607). The 10th Ministerial Conference of the WTO will take place in Nairobi from 15 December 2015 to 18 December 2015. The submission is sponsored by the following Members: Argentina, the Plurinational State of Bolivia, Brazil, China, Colombia, Cuba, Ecuador, Egypt, India, Indonesia, Kenya, Malaysia, Pakistan, Russian Federation, Sri Lanka and the Bolivarian Republic of Venezuela.
The text of the draft The Ministerial Conference reads as follows:
Nairobi, 15-18 December 2015TRIPS NON-VIOLATION AND SITUATION COMPLAINTS
MINISTERIAL DECISION OF **** DECEMBER 2015 The Ministerial Conference decides as follows:
We take note of the work done by the Council for Trade-Related Aspects of Intellectual Property Rights pursuant to our Decision of 11 December 2013 on “TRIPS Non-Violation and Situation Complaints” (WT/MIN (13)/31);
After having examined the issue 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, the 10th Ministerial Conference decides that those provisions of GATT 1994 shall not apply to the settlement of disputes under the TRIPS Agreement.
Background (Mainly taken from a previous KEI blog on non-violation).
A ‘non-violation complaint’ at the WTO effectively amounts to a complaint that a country has violated the spirit but not the letter of trade law. While countries can launch such disputes at the WTO for trade in goods and services, there is a moratorium on doing so over intellectual property rights. For many WTO members, the application of non-violation and situation complaints to the TRIPS Agreement, as advocated by Switzerland and the United States of America, represent a stealth attack on WTO members’ sovereign right to use TRIPS flexibilities such as compulsory licensing to safeguard health and promote access to medicines for all.
In October 2013, the WTO Secretariat provided the following update on the TRIPS Council’s consideration of non-violation and situation complaints:
Complaints about countries being deprived of expected rights — such as access to export markets — even when no WTO rules or commitments have been violated, can be lodged as formal legal disputes for trade in goods and services. But members disagree about whether complaints of this kind would be possible in intellectual property. Broadly, the US and Switzerland argue that non-violation complaints are possible in TRIPS; most other members disagree, but some have said they want to consider how non-violation complaints might be handled.
Members compromised by writing into the 1995 TRIPS Agreement a five-year “moratorium”, ie, an agreement not to bring non-violation cases in TRIPS in the period 1995–99 (Article 64.2). This has been extended from every ministerial conference to the next since then.
In May 2003, the TRIPS Council chairperson listed four possibilities for dealing with the moratorium. The present chairperson has indicated a similar set four possibilities will be discussed next year:
- banning non-violation complaints in TRIPS completely (as would happen if no further extensions are agreed)
- allowing the complaints to be handled under the WTO’s dispute settlement rule,s as applies to goods and services cases
- allowing non-violation complaints but subject to special “modalities” (i.e. ways of dealing with them)
- extending the moratorium (or making it permanent)
It should be noted the 9th WTO Ministerial Conference held in Bali, Indonesia (3-7 December 2013) issued the following declaration on TRIPS Non-Violation and Situation Complaints.
We take note of the work done by the Council for Trade-Related Aspects of Intellectual Property Rights pursuant to our Decision of 17 December 2011 on “TRIPS Non-Violation and Situation Complaints” (WT/L/842), 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 our next Session, which we have decided to hold in 2015. It is agreed that, in the meantime, Members will not initiate such complaints under the TRIPS Agreement.
If non-violation and situation complaints were applied to the TRIPS Agreement, one wonders how this would affect the implementation of tobacco plain packaging measures in Australia, New Zealand, Ireland and the United Kingdom of Great Britain and Northern Ireland, Section 3(d) of the Indian Patents Act or measures by WTO members to issue compulsory licenses on health technologies.