On Tuesday, 9 June 2015, India delivered the following statement on Non-Violation and Situational Complaints (IP/C/W/385/Rev 1). Brazil introduced the paper along with 16 other WTO members including India. The 17 co-sponsors of this paper include Argentina, Plurinational State of Bolivia, Brazil, China, Colombia, Cuba, Ecuador, Egypt, India, Indonesia, Kenya, Malaysia, Pakistan, Peru, Russian Federation, Sri Lanka and Bolivarian Republic of Venezuela.
The joint submission proposes the following action item for the Nairobi Ministerial from 15 December 2015 to 18 December 2015:
In light of the concerns expressed above and set out in detail in the following paper, we propose that the Council for TRIPS recommend to the Ministerial Conference that complaints of the type provided for under subparagraphs 1(b) and 1(c) of Article XXIII of GATT 1994 shall not apply to the settlement of disputes under the TRIPS Agreement.
The Indian statement follows in full.
Intervention made by India at the TRIPS Council meeting ( June 9-10, 2015)Agenda Item 6: Non-Violation and Situational Complaints
India is a co-sponsor of the document IP/C/W/385/Rev 1 which Brazil has introduced in the TRIPS Council Meeting today along with sixteen other WTO members. The revised document is the reiteration of the serious concerns that we have with respect to the introduction of non-violation complaints in the TRIPS context. We extend our support to the statement of Brazil as well as other who have spoken today in support of the non-applicability of non-violation and situation complaints to TRIPS. Brazil has outlined the rationale and history of the document and the rationale for the revised version.
Serious concerns on the ambiguity, incoherence and limit on flexibilities of members due to the applicability of non violation complaints in the TRIPS context continue. Neither does past GATT/WTO jurisprudence nor do explanations to the contrary allay our fears. Over the last year intensive discussions on the applicability of non-violation complaints have taken place in the Council. This has re-affirmed our belief on the detrimental consequences non-violation complaints would have in the TRIPS context.
India would like to highlight only some of the issues that we consider pivotal in understanding our concerns on the applicability of NVCs to TRIPS.
It is clear that when negotiating the TRIPS Agreement, non-violation complaints were made inapplicable to TRIPS under Article 64.2. This is in stark contrast to the GATT and GATS where NVCs were made applicable without any discussion on scope and modalities. This, by itself, clearly indicates the serious concern the membership had in applying NVC in the special context of the TRIPS agreement. Further, Article 64.2 clearly mandated that there had to be an agreement on the scope and modalities of NVCs in the TRIPS context. This, again, is not present in the context of GATT and GATS.
The entire thrust of Article 64 and the intention of the negotiators clearly shows that Members viewed TRIPS in a very different way in the context of applicability of NVCs. If this was not the case, there would have been no issue in applying NVCs like in the case of GATT without any debate or consensus on scope and modalities. It would also not be the case of proponents of NVCs in TRIPS that the TRIPS does not envisage a consensus on scope and modalities. If NVCs were to automatically apply after a time frame, there would be no need for Article 64.3. The fact that scope and modalities need to be discussed and agreed upon recognizes the unique nature of the applicability of NVCs to TRIPS. The negotiators recognized this and we must not interpret it otherwise.
The fears that many delegations, especially developing country members, have expressed on the ambiguities that NVCs bring cannot be underestimated. Those fears have not been allayed by the discussion but have only strengthened. It strikes at the very ability of governments to function as well as the ability to deal with challenges to that ability. What are the circumstances in which they will be used to suppress members sovereign policy space. What are the limits? What are the various policy measures that will come under its scanner. I am afraid, Mr.Chairman, there are no satisfactory answers to it and neither will there be any.
The TRIPS lays down a delicate balance between rights and obligations of Members. NVCs tilt that balance. The very nature of NVCs makes it impossible to lay down various practical scenarios on how they would impact a Members sovereign space. A new cause of action arises even when there is no textual violation of the TRIPS agreement. Article 3.2 of the DSU states, inter alia, that the DSB recommendations cannot diminish the rights and obligations provided in the covered agreements. The applicability of NVC to TRIPS will widen the rights and obligations of the members under the TRIPS beyond the express terms of the TRIPS Agreement. This is how the delicate balance that now exists will inevitably be affected.
The ambiguity and lack of clarity that NVCs will usher in in the TRIPS context will especially affect developing and LDCs severely. Lack of legal capacity to handle such cases will be a serious issue. It would inevitably lead to addition of litigation cost. The vast array of measures that will suddenly be open to potential challenge will be insurmountable. India believes that this is an unnecessary burden that was not intended by the TRIPS agreement.
Mr. Chairman, India requests members to seriously reflect on the concerns expressed by overwhelming number of delegations in this meeting and earlier and should join the consensus that complaints on the grounds of nullification or impairment of the type identified in Article XXIII:1(b) and (c) of the GATT 1994 be determined inapplicable to the TRIPS Agreement, in the interest of the stability and certainty of the multilateral system.