[A2k] TWN Info:Suspension of General Assembly due to procedural block by the US

Sangeeta Shashikant sangeeta at twnetwork.org
Thu Oct 3 02:43:57 PDT 2013


Title : TWN IP Info: WIPO –Suspension of General Assembly due to procedural
block by the US
Date : 03 October 2013

Contents: 
TWN Info Service on Intellectual Property Issues (Oct13/04)
4 October 2013
Third World Network
www.twn.my

WIPO: Suspension of General Assembly due to procedural block by the US

Geneva, 3 October (K.M. Gopakumar) – Member States failed to adopt the
program and budget for biennium 2014-2015 of the World Intellectual Property
Organization (WIPO) due to the suspension of the 51st meeting of the
organization’s General Assembly.

The Chair, Permanent Representative of Finland in Geneva, Ambassador Pไivi
Kairamo, proposed the suspension of the General Assembly citing the
inability to complete the business prior to midnight of 2 October. The final
plenary was finally convened at 10.20 pm after frequent adjournments since
that morning.

The WIPO General Assembly adopted a decision to reconvene by holding an
extraordinary session of the Assembly in December 2013.

The General Assembly of WIPO and the Assemblies of the treaties administered
by WIPO took place from 27 September to 2 October in Geneva.

The unraveling of the event at the plenary showed that the United States,
with active cooperation of some Group B (comprising developed countries)
members such as France, orchestrated the delaying tactics to block the
adoption of pending decisions, including the program and budget.

After convening the plenary at 10.20 pm the Chair opened Agenda item 14,
i.e. the program and budget for the biennium 2014- 2015 for discussion. The
Chair informed the Member States that there was considerable progress with
regard to the informal consultations, which resulted in consensus on four
issues related to program and budget. They are: Program no. 2 that deals
with trademark and budgeted for holding a diplomatic conference to adopt a
design law treaty; Program no. 4, which provisioned funds for convening a
diplomatic conference for the adoption of international legal instruments;
Program no. 18 that outlines the activities in two areas viz. the activities
of the Intellectual Property (IP) and Global Challenges Division, and IP and
Competition Policy; and Program no. 20

Meanwhile the Secretariat started the distribution of the draft text
containing the decision on program and budget to Member States.

However, before the introduction of the draft text by the Chair, the US
raised a point of order on the quorum and asked for a roll call of Member
States.  The US pointed out that there was no quorum for convening the
meeting. It cited Article 6(3)(b) of the WIPO Convention, which stipulates
that one-half of the States members of the General Assembly shall constitute
a quorum. Therefore the US insisted that presence of 93 member States was
required to fulfill the quorum requirement. It stated that without a quorum
no business could be conducted.

The Legal Counsel clarified that the particular plenary meeting is not the
General Assembly under Article 6 but it is a Conference under Article 7 of
the Convention.  Under Article 7(3)(b) the quorum requirement is only one
third of the Membership.

[WIPO administers 26 treaties including the WIPO Convention that establishes
the Organization. The Governing Bodies established by the WIPO Convention
comprises the WIPO General Assembly, the WIPO Conference and the WIPO
Coordinating Committee. In addition there are the Assemblies of the member
states of each of the Unions (e.g. the Patent Cooperation Treaty Union
Assembly; the Madrid Union Assembly etc.) that were established by the
respective WIPO-administered treaties. That is why the meetings are called
WIPO Assemblies. 

The WIPO General Assembly consists of the States party to the WIPO
Convention, which are also members of any of the Unions. The Conference
consists of the States party to the WIPO Convention, whether or not they are
members of any of the Unions.]

Not satisfied by the explanation of the Legal Counsel, the US sought further
explanation for treating the plenary as the Conference instead of General
Assembly. The legal counsel further clarified that the program and budget
consists of other unions as well as WIPO. Therefore the plenary discussing
the program and budget, is the Conference and not a General Assembly.

At this stage France attacked the Secretariat, calling the delay in
convening the plenary as a failure of the governance and wanted a ten-minute
adjournment to consult with its Ambassador.

Meanwhile Bangladesh asked to wait for a few more minutes to start the roll
call so a few more Member States can join the roll call.

A few developing countries including India, Angola and Ghana, responded to
France that the delay in decision-making is not the fault of the Secretariat
or the lack of coordination. The Indian Ambassador cited a UN meeting he
participated that ended on Sunday morning instead of Friday night.

[There are many precedents in the UN where negotiations on unresolved issues
have extended beyond the midnight of the official closing day, sometimes
even by another day and night. Sometimes it is called “stop the clock”.]

At this stage the US said that it should be the General Assembly that
decides on the program and budget instead of the Conference. The US also
rejected the assertion of the Legal Counsel that the informal count shows
the quorum. It further asked the Secretariat to come up with a list of
things to be decided by the Assembly and things to be decided by the
Conference.

The Chair then adjourned the plenary for 10 minutes. However, this break
exceeded double than what was announced.  During the break there was an
announcement that the Secretariat would inform when the Plenary would
restart after the Group B meeting. Some time after that announcement, the
Chair invited all Group Coordinators for a consultation near the podium in
the plenary hall.

After the consultation the Chair resumed the plenary at 11.30 pm and invited
the Legal Counsel to explain why the program and budget is discussed in the
Conference instead of the General Assembly. According to the Legal Counsel,
Paragraph 4 of the Decision point 4 states: “The Assemblies of the Member
States of WIPO and of the Unions administered by it, each as far as it is
concerned are invited to approve the Proposed Program and Budget for the
2014/15 Biennium”. Therefore the budget document contains both the
Assemblies of Member States and Unions, therefore it is convened as a
Conference instead of General Assembly.

The Chair proposed the suspension of the General Assembly citing the
inability to complete the business before midnight.

A senior WIPO Official explained that the Secretariat decided to adjourn the
session because the Secretariat was afraid that some Member States
especially the US may object to the continuance of the session beyond
midnight because technically the General Assembly is to be concluded on 2
October. Continuance of the plenary beyond midnight technically pushes the
conclusion of the General assembly to 3 October. However the official
clarified that there is no written rule that the session should end at
midnight. 

Neither the Chair nor the Secretariat placed any suggestion of the extension
of the plenary beyond midnight before the Plenary. Since there was no
written rule against the extension of the time of the Assembly beyond a
couple of hours than the predetermined date many delegates felt that it was
well within the ambit of Member States to decide whether the plenary can be
extended beyond midnight.

One developing country delegate told the author that the US demand for roll
call and France’s request for time for consultation are suspected to be part
of a delaying strategy to push for the suspension of the session.

Another developing country delegate conveyed to the author that by raising
procedural questions the US blocked the adoption of the program and budget
and also saved itself from getting isolated on the issue of holding the
Diplomatic Conference on the Design Law Treaty (DLT). According to this
developing country delegate, the US used procedural objections as an escape
route from openly getting isolated on DLT.

There was a consensus to hold the diplomatic conference in 2014 after Group
B (except the US) accepted the Africa Group demand to incorporate provisions
for technical assistance in the draft text and India’s demand to reflect its
proposals, which are currently in the footnote in the main text. The US
opposed the African proposal of inclusion of technical assistance in the
basic proposal of the treaty. This resulted in the failure of informal
consultation on the Diplomatic Conference on DLT.

The draft text on Agenda 33 on “Consideration of the convening of a
Diplomatic Conference for the Adoption of a DLT” Paragraph 3 reflects the
accommodation of the demands of the Africa Group and India. Paragraph 3
states: “agrees that documents SCT/30/2(industrial design law and practice
Draft Articles) and SCT/30/3 (Industrial Designs Law and Practice-Draft
Regulations) as well as any textual contributions will constitute the basic
proposal for the design law treaty and will include a specific article to
ensure technical assistance and capacity building for developing countries
and least developed countries (LDCs) for the implementation of the future
design law treaty”.

The draft text on Agenda 14, i.e. program and budget, containing a decision
on Programs 2, 4, 18 and 20 is now a consensus text but not adopted formally
due to the procedural block by the US.

[Program no. 2 deals with trademark and budgeted for holding a diplomatic
conference to adopt a design law treaty; Program no. 4 provisions for funds
for convening a diplomatic conference for the adoption of international
legal instruments; Program no. 18 outlines the activities in two areas viz.
the activities of the IP and Global Challenges Division, and IP and
Competition Policy; Program no. 20 deals with WIPO’s external relations,
partnerships and external offices i.e. the opening of WIPO external
offices.]

The hectic informal consultations including an open ended meeting of
ambassadors at noon of 2 October failed to reach agreement on the opening of
external offices. 

The resulting draft text that reached consensus reads:

“The Assemblies of the Member States of WIPO and the Unions administered by
it, each as far as it is concerned,

(i) approve the Proposed Program and Budget for the 2014/15 biennium as
contained in document A/51/7 REV. subject to the following agreed changes,
in respect of:
a. The formulation of targets in the Results Framework of Program 2, as
reflected in Annex I;
b. The formulation of targets in the Results Framework of Program 4, as
reflected in Annex II
c. The formulation in Program 20, of paragraphs 20.8 and 20.21 as amended in
Annex III to reflect the inclusion of two additional offices  (one in Latin
American and Caribbean region and one in India)
d. Additional allocation of non-personnel resources to Program 20 from
unallocated.

(ii) adopt the General Guiding Principles Regarding WIPO External Offices
(Annex IV); and

(iii) note the comments made by Member States on the request of additional
information concerning the IP and Global Challenges program (Program 18) and
requested the Program to inform Member States at the 12th Session of the
CDIP on the development–related aspects of its activities and to inform
Member States at the 20th session of the SCP on the patented aspects of
activities.”

Annex I and II amended the initial proposal to hold the diplomatic
conferences by adding a word “possible”.  The amended target reads as
“Adoption of a Design Law Treaty by a possible Diplomatic Conference’ and
“Adoption of an international legal instrument (s) by a possible Diplomatic
Conference” respectively.

Annex IV contains the General Guiding Principles Regarding WIPO General
Offices, which contains two, parts viz. general guiding principles and
implementation. General guiding principles are: Transparency of the
procedure on setting up WIPO external offices; rationale for establishing
new external offices and their purposes; financial sustainability/budget
neutrality; Geographic aspects/Locational aspects; external offices’
accountability/reporting.

The implementation parts reads: “It was decided to immediately apply the
general guiding principles to all proposed, existing and future EOs
(external offices) to the extent applicable provided that relevant decisions
taken by GA in the past and including the present one on the matter of EO
will remain in force”.

However, the author learned that the delegation of China has expressed
concern on the language on implementation because the Coordination Committee
had already approved the Memorandum of Understanding between WIPO and China
and Russia on the opening of external offices. Hence, the Chinese delegation
wanted to seek clarification on the applicability of general guiding
principles on the already approved MoU.

The language on program 18 effectively requires the Global Challenges
division to report to the Committee on Development and IP (CDIP) and the
Standing Committee on Patents. This was one of the important demands of the
Development Agenda Group (comprising several developing countries) that was
concerned over the lack of accountability of this part of the Secretariat to
Member States.

The new budget biennium for 2014-2015 is to start from 1 January 2014.
Hence, the extraordinary session of the General Assembly in December 2013 is
an attempt to avoid the non-adoption of the budget.

Nevertheless, even in the absence of non-adoption of the budget the
organization is to work as per the budget approved during the previous
biennium i.e. 2012-13.

A developing country delegate who was involved in the informal consultations
on Agenda 30 i.e. governance of WIPO told the author that consensus was
reached on the issue, whereby Member States are allowed to submit the
proposals after the presentation of the report of the Joint Inspection Unit.

The same delegate also conveyed that there was no breakthrough regarding
matters concerned to the Committee on WIPO Standards.

The Legal Counsel clarified that even in the absence of adoption of the
General Report and of the Individual Reports of each Governing Body under
Agenda item 47, which could not be carried out due to the suspension of the
General Assembly, this does not affect the validity of the adopted decisions
in other agenda items.

The extraordinary session in December will deal only with Agenda items 14
(Program and Budget), 30 (Governance), 33 (decision on Diplomatic Conference
on DLT), 34 (matters related to the Standing Committee on Patents), 36.3
(Committee on WIPO Standards), and 47 (General Report and of the Individual
Reports of each Governing Body).+











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