For Ministerial, Developing Countries Seek Moratorium On TRIPS Non-Violation Complaints

The ability for a member of the World Trade Organization to challenge another member for deprivation of benefits even though this member has not violated any given WTO agreement does not presently apply to intellectual property.

For years, the issue has been debated in the WTO intellectual property committee, with no conclusive outcome. Last month, a group of 17 developing countries submitted a draft decision for the upcoming WTO ministerial conference in December to lastingly ban intellectual property-related non-violation complaints, stepping ahead of the next meeting of the WTO IP committee to be held in October.

The draft decision [pdf], now on the WTO website, was put forward on 24 July by Peru on behalf of Argentina, Bolivia, Brazil, China, Colombia, Cuba, Ecuador, Egypt, India, Indonesia, Kenya, Malaysia, Pakistan, Russia, Sri Lanka, and Venezuela.

It is expected to be circulated to WTO members for consideration at the 10th Ministerial Conference of the WTO in Nairobi, from 15-18 December.

The draft decision, IP/C/W/607, reads 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.

The draft decision refers to a December 2013 WTO Ministerial Conference decision asking the Council for Trade-Related Aspects of Intellectual Property Rights (TRIPS) to make a recommendation on the moratorium exempting the TRIPS Agreement from non-violation complaints. The moratorium first agreed in 1995 was to expire in 1999, but has been extended several times since then. This draft decision appears to make the moratorium permanent.

At least two countries – Switzerland and the United States – have signalled an interest in ending the moratorium and allowing non-violation complaints related to TRIPS issues.

Knowledge Ecology International circulated the draft decision and published comments on it here.

TRIPS Flexibilities in Danger, Decision Proponents Say

The rationale of the draft decision is explained in a revised document [pdf] from 27 May 2015, first submitted [pdf] on 30 October 2002 by 14 countries, which were joined in the revision by China, Indonesia and Russia.

According to the revised document, allowing non-violation complaints under TRIPS is unnecessary and would “upset the delicate balance of rights and obligations in the TRIPS Agreement by elevating private rights over the interests of the users of intellectual property – both within and between countries….”

The proponents also state that non-violation complaints under TRIPS might limit the use of flexibilities inherent in the TRIPS Agreement “to secure objectives relating to public health, nutrition, the transfer of technology and other issues of public interest in sectors of vital importance to socio-economic and technological development.”

Most WTO members appear to be in favour of rendering the moratorium permanent. However, the United States and Switzerland have opposed it.

According to the WTO, the US and Switzerland “say that non-violation cases should be allowed in order to discourage members from engaging in ‘creative legislative activity’ that would allow them to get around their TRIPS commitments.”

In June 2014, the US put forward a text [pdf] arguing in favour of non-violation complaints under TRIPS and attempting to deflect the worries of the proponents of an indefinite moratorium.

Image Credits: WTO – Public Forum 2010