[Ip-health] Bridges Weekly: WTO Members Approve TRIPS Non-Violation Extension, Debate E-commerce Language

Thiru Balasubramaniam thiru at keionline.org
Thu Nov 26 08:12:00 PST 2015



WTO Members Approve TRIPS Non-Violation Extension, Debate E-commerce

26 November 2015

WTO negotiators have agreed to extend a moratorium on “non-violation and
situation” complaints under the organisation’s intellectual property rules
for an additional two years, forwarding the planned decision to the global
trade body’s upcoming ministerial conference for adoption.

The news comes as WTO members continue discussing the extension of another
moratorium on customs duties on electronic commerce, as well as a decision
regarding next steps for an ongoing, related e-commerce work programme.
These are also being eyed as outcomes for the ministerial, scheduled for
15-18 December in Nairobi, Kenya.

Both the “non-violation” moratorium and e-commerce areas have long been
standing items on ministerial conference agendas. Meanwhile, with the
Nairobi meet just weeks away, WTO members are looking to see what other
deliverables they will be able to put together for their highest-level
meeting, as well as how to structure their future work.

TRIPS non-violation

Under the current “non-violation and situation complaints” moratorium, WTO
members are only allowed to file a complaint about an intellectual property
issue if the Agreement on Trade-Related Aspects of Intellectual Property
(TRIPS) has allegedly been breached.

In other words, the moratorium is designed to prevent members from suing
each other over damage arising from alleged violations of the spirit – but
not the letter – of the organisation’s intellectual property rules, such as
through an action that a government takes or another situation that arises.

Non-violation complaints are permitted under WTO rules in other trade
areas, such as goods and services. Under these complaints, it is considered
valid for one member to challenge another member’s domestic measure under
the organisation’s dispute settlement mechanism, should such policy deprive
the former of a legitimately expected benefit.

Whether such a remedy can be applied to intellectual property rights,
however, was debated extensively ahead of the WTO’s establishment two
decades ago under the Uruguay Round negotiations. Ultimately, the TRIPS
Agreement established that non-violation complaints would not apply for a
period of five years from when the overall WTO Agreement entered into force
– in other words, not until the year 2000.

During this period, the TRIPS Council was instructed to make
recommendations to the WTO’s ministerial conferences regarding the scope
and modalities for addressing non-violation and situation complaints under
the organisation’s intellectual property rules. The moratorium has been
extended repeatedly since.

Whether the moratorium would indeed be renewed for another two years at the
Nairobi ministerial had earlier been in question, given that both the US
and Switzerland had again argued for lifting the moratorium on the grounds
that there could be a place for such complaints under the TRIPS Agreement.

Some other members had reportedly argued that allowing for such
non-violation and situation complaints would still require developing
modalities for their inclusion. An October meeting of the TRIPS Council had
been suspended in order to reach agreement on this item, given the
disagreement over whether to end the moratorium or to extend it

At a meeting on 23 November of the WTO’s Council on Trade-Related Aspects
of Intellectual Property (TRIPS), members ultimately agreed to forward to
Nairobi a draft decision extending for two years the moratorium on
non-violation and situation complaints, with various members saying at the
meeting that talks on a permanent solution should begin following the

According to an addendum to the TRIPS Council’s annual report issued
following this meeting, the recommended language for the ministerial
decision would take note of the Council’s work in this area since the last
extension, which was approved at the 2013 ministerial conference in Bali,

The language then directs the TRIPS Council “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 [the General Agreement on
Tariffs and Trade, or 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


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