[Ip-health] September 2011: Spotlight on India at the WTO Trade Policy Review

Thirukumaran Balasubramaniam thiru at keionline.org
Mon Sep 3 09:23:54 PDT 2012


September 2011: Spotlight on India at the WTO Trade Policy Review

Submitted by thiru on 28. August 2012 - 18:25

On 14 September 2011 and 16 September 2011, the World Trade Organization (WTO) undertook a trade policy review of India. All members of the WTO are subject to review under the Trade Policy Review Mechanism (TPRM). The TPRM takes place in the "Trade Policy Review Body which is actually the WTO General Council — comprising the WTO’s full membership — operating under special rules and procedures" (Source: WTO, Trade Policy Reviews: Brief Introduction). In October 2011, the WTO released the records of the meeting including WT/TPR/M/249, WT/TPR/M/249/Add.1 (containing advance written question posed by WTO members and replies by India) and WT/TPR/M/249/Add.2 (containing additional advance written question posed by WTO members and replies provided by India).

The questions raised by WTO members relating to patents and pharmaceuticals include such topics as compulsory licensing, exhaustion, patentability criteria and the protection of test data. The following piece is a walkthrough of the trade policy review of India in the context of IPRs and health technologies. Although the activities of the WTO TRIPS Council receive much scrutiny during discussions of controversial issues such as ACTA, public health and tobacco plain packaging, the WTO’s trade policy reviews have not traditionally attracted the same level of attention. While discussions within the Trade Policy Review Mechanism are often routine in nature, this is not always the case – as this post will highlight. Perhaps a more diligent examination of the goings-on of the WTO's Trade Policy Review Mechanism are merited, to provide more insight into how TRIPS flexibilities are treated in the WTO system. From September 2012 to December 2012, the WTO will undertake trade policy reviews of the following countries: Korea, Norway, Bangladesh, Israel, Iceland, East African Community (Kenya, Tanzania, Uganda, Burundi, Rwanda), Nicaragua and the United States of America.

According to the WTO,

"The Trade Policy Review Mechanism was an early result of the Uruguay Round, being provisionally established at the Montreal Mid-Term Review of the Round in December 1988. Article III of the Marrakesh Agreement, agreed by Ministers in April 1994, placed the TPRM on a permanent footing as one of the WTO’s basic functions and, with the entry into force of the WTO in 1995, the mandate of the TPRM was broadened to cover services trade and intellectual property.

The objectives of the TPRM, as expressed in Annex 3 of the Marrakesh Agreement, include facilitating the smooth functioning of the multilateral trading system by enhancing the transparency of Members’ trade policies.

All WTO Members are subject to review under the TPRM. The Annex mandates that the four Members with the largest shares of world trade (currently the European Communities, the United States, Japan and China) be reviewed each two years, the next 16 be reviewed each four years, and others be reviewed each six years. A longer period may be fixed for least-developed country Members."

WTO members that raised questions related to India's IPR regime in the context of pharmaceuticals include Australia, Brazil, Chile, Chinese Taipei Costa Rica, European Union, Japan, Switzerland and the United States. The following extracts are taken from WT/TPR/M/249/Add.1 unless specifically noted.


Thiru Balasubramaniam
Geneva Representative
Knowledge Ecology International (KEI)

thiru at keionline.org

Tel: +41 22 791 6727
Mobile: +41 76 508 0997

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