1 March 2017 – WTO TRIPS Council – India’s statement on Non-Violation and Situation Complaints

On 1 March 2017, India delivered the following intervention on Non-Violation and Situation Complaints at the WTO TRIPS Council.

Agenda Item 8. Non-Violation and Situation Complaints

Mr.Chairman, my delegation would like to thank the delegation of Kyrgyz Republic for joining as co-sponsor of document W385 Rev.1.

India’s position on the issue of non-violation complaints under the TRIPS Agreement remains unchanged. In the run up to the Ministerial Conference in Nairobi, it would be worth noting that there was a great confluence of interest on making such complaints inapplicable to TRIPS.

We do not stand convinced by the reasons provided by a couple of Members of it’s place in the TRIPS context. While whether the TRIPS Agreement is a market access agreement may or may not be relevant for its applicability, it is clear that the drafters did not unequivocally apply NVCs to TRIPS. Article 64.1 of the TRIPS Agreement establishes that GATT Article XXIII applies to the TRIPS Agreement except as otherwise provided in Articles 64.2 and 64.3. Notwithstanding the expiry of the time-period under Article 64.2, non-violation and situation complaints only apply to the TRIPS Agreement in accordance with the procedure established under Article 64.3. Complying with this procedure, the importance of which Ministers reaffirmed through their adoption of the Decision on Implementation-Related Issues and Concerns, should be a matter of priority for the TRIPS Council. The Decision directed the TRIPS Council 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 Fifth Session of the Ministerial Conference.” It also agreed that, in the meantime, members will not initiate such complaints under the TRIPS Agreement. Thus, the assertion that the expiry of the time-period under Article 64.2 makes non-violation and situation complaints automatically applicable to the TRIPS Agreement is, in our view, incorrect.

Mr.Chairman, it is important to recognize that the TRIPS Agreement is a unique, “sui generis” agreement and is distinct from the GATT and GATS, contrary to the assertion made in the US communication. In the GATT/WTO legal framework, the establishment of the non-violation procedure aims primarily to prevent the tariff concessions or specific commitments on trade in services from being adversely distorted by the additional trade measures taken. With the gradual evolution of comprehensive trade agreements addressing a wide range of issues, it does not make any logical sense to extend the same concern of circumvention/ dilution of trade obligations in the context of agreements such as the TRIPS Agreement.

When it comes to the GATT and the GATS as market access agreements, the non-violation complaint is an additional tool with which to balance the rights and obligations concerning market access in the GATT and GATS respectively. Fundamentally differing from the GATT and the GATS, the TRIPS Agreement is not “about reciprocal market access rights of governments”. While IPRs might facilitate trade and investment, the obligations under the TRIPS Agreement cannot be characterized as market access concessions.

Serious concerns remain on the debilitating impact non-violation complaints in TRIPS can have on the regulatory policy space of members, on TRIPS flexibilities as well as increasing the complexity in interpreting the TRIPS provisions. It can not only have a chilling effect on Member’s exercise of their IP regimes but also severely restrain ability of Members to achieve other public policy objectives.

Mr.Chairman, the absence of non-violation complaints in the TRIPS context does not in any manner threaten or dilute the enforceability of TRIPS related rights and obligations. On the contrary, the application of non-violation complaints in the TRIPS context could potentially present issues relating to rights of Intellectual Property Right holders versus the legitimate exercise of regulatory policy choice by Governments. Introducing non-violation and situation complaints into the TRIPS Agreement is unnecessary and inconsistent with the interests of the WTO members. Any benefits arising from the Agreement can be adequately protected by applying the text of the Agreement in accordance with accepted principles of international law, and without introducing the legally uncertain notion of non-violation and situation complaints.

We note that there is a moratorium on the applicability of such complaints until the next Ministerial Conference and we look forward to work with like-minded Members in making non violation complaints inapplicable to TRIPS. We also wish to reiterate that until there is a consensus on the scope and modalities of the applicability of NVCS to TRIPS, NVC will not apply to the TRIPS Agreement.

We do not support updating of the factual note on non-violation complaints as suggested by the delegation of United States. We agree only if Ecuador’s proposal of updation of three factual notes on Triplets is agreed.