[Ip-health] TWN IP Info: WIPO 亡uspension of General Assembly due to procedural block by the US

K.M. Gopakumar kumargopakm at gmail.com
Thu Oct 3 22:37:27 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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