On 11 June 2014, India delivered the following statement at the WTO TRIPS Council on on non-violation and situation complaints in response to the US proposal (IP/C/W/599) tabled on 10 June 2014.
NV&S ComplaintsThank you Chair for providing me the floor. At the outset let me thank the delegation of the US for circulating a communication on this agenda item, just today. While we appreciate this communication, let me also remind Members that the detailed discussion on this issue had taken place in 2002 and the communication IP/C/W/ 385 dated October 30, 2002 on behalf of Argentina, Bolivia, Brazil, Colombia, Cuba, Ecuador, Egypt ,India, Kenya, Malaysia, Pakistan, Peru, Sri Lanka and Venezuela is still very much relevant. We are however convinced that this communication from the US may not be able to address the concerns raised in our 2002 paper. However while we are still analyzing and the comments that my delegation would be making today on few points are very preliminary. We however hope to make substantive comments in the next TRIPS Council meeting.
Chair, extending the concept of non violation and situation complaints to the TRIPS Agreement is not only unnecessary but would raise systemic and specific concerns. As communicated through our 2002 communication, it would introduce incoherence among WTO agreements by allowing something which a WTO Member has agreed to accept in one part of the single undertaking (e.g. the GATT or the GATS) to be challenged on the basis that it could nullify or impair benefits in another area (e.g. TRIPS); secondly it would upset the delicate balance of rights and obligations in the TRIPS Agreement by elevating private rights over the interests of the users of intellectual property – both within and between countries – and over other important public policy considerations in a manner inconsistent with Article 3.2 of the DSU; Thirdly it would undermine regulatory authority and infringe sovereign rights by exposing to challenge any measure that affects intellectual property and that could not have been foreseen at the time of the Uruguay Round; Further it would limit use of the flexibilities inherent in the TRIPS Agreement to secure objectives relating to public health, nutrition, the transfer of technology and other issues of public interest in sectors of vital importance to socio-economic and technological development.
Chair, applying non-violation complaints to the TRIPS Agreement is not required to protect market-access commitments made in other WTO agreements. The primary goal of the TRIPS Agreement – unlike other agreements in Annex 1 of the Marrakesh Agreement – is not to protect market-access commitments under other agreements. Whereas other Annex 1 WTO agreements protect market access for the like products of all Members, the TRIPS Agreement’s minimum standards enable private interests in one Member to exclude all others from using the subject-matter of the right. A second difference is that while Annex 1 agreements such as the TBT and SPS Agreements do not contain explicit commitments to certain levels of market access, maintaining market access is their primary objective, and their substantive provisions are designed specifically to secure market-access commitments. Thirdly while other WTO agreements tend to increase competition, the basic effect of the TRIPS Agreement’s rules is to reduce competition to provide incentives for innovation.
Finally, the assertion that the expiry of the time-period under Article 64.2 makes non-violation and situation complaints automatically applicable to the TRIPS Agreement, irrespective of whether a consensus has been reached by a Ministerial Conference on the issue of scope and modalities, is in our view incorrect. Article 64.1 establishes that GATT Article XXIII applies to the TRIPS Agreement except as otherwise provided in Articles 64.2 and 64.3. Notwithstanding the expiry of the time-period under Article 64.2, non-violation and situation complaints only apply to the TRIPS Agreement in accordance with the procedure established under Article 64.3. We believe that in the Doha Decision on Implementation-Related Issues and Concerns Ministers have dispelled this suggestion by reiterating the importance of continuing the examination mandated under Article 64.3.
Let me therefore conclude by saying that the TRIPS Agreement should be excluded from the application of non violation and situation complaints as it would hamper the delicate balance and flexibilities inherent in the TRIPS Agreement and would have serious implications to the developing countries.