WTO members meeting as the TRIPS (trade-related aspects of intellectual property rights) Council agreed on 23 November on a draft ministerial decision on so-called non-violation disputes in the area of intellectual property. The decision is expected to be adopted at the Nairobi Ministerial Conference in December.
Under the draft decision, the TRIPS Council would be asked to continue its discussions on whether non-violation disputes should apply to intellectual property, and to make recommendations to the next Ministerial Conference to be held in 2017. In the meantime, WTO members would refrain from bringing such cases to the dispute settlement system.
WTO agreements allow members to bring cases against each other if they feel that another government’s action or a specific situation has deprived it of an expected benefit, even if no agreement has been violated.
But opinions differ among WTO members on whether such non-violation cases are feasible or desirable in intellectual property. The United States and Switzerland continue to argue that there is a place for non-violation complaints in TRIPS while most other members disagree. The TRIPS Agreement contains a temporary restraint (a “moratorium”) on bringing non-violation complaints to the WTO’s dispute settlement system. This has been extended several times recently, from one Ministerial Conference to the next.
The TRIPS Council has now proposed that ministers agree to a further extension of the moratorium until the Eleventh Ministerial Conference in 2017. During this period, discussions on the applicability of these types of disputes to the TRIPS Agreement should continue. A number of members emphasized that discussions on a permanent solution to this question should begin immediately after the Nairobi Ministerial Conference.
The draft decision on “TRIPS non-violation and situation complaints” for the Ministerial Conference says:
“We take note of the work done by the Council for Trade-Related Aspects of Intellectual Property Rights pursuant to our Decision of 7 December 2013 on “TRIPS Non-Violation and Situation Complaints” (WT/L/906), 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 2017. It is agreed that, in the meantime, Members will not initiate such complaints under the TRIPS Agreement.”
Chairperson: Mr Abdul-Aziz Al Otaibi, Ambassador of the Kingdom of Saudi Arabia