Legal basis for a dispute

4.5 Types of dispute in the TRIPS Agreement

In Article 64.1, the TRIPS Agreement (which is contained in Annex 1C of the WTO Agreement) contains a reference to Articles XXII and XXIII of GATT 1994. On that basis, one would say that all the above as explained in the context of GATT 1994 also applies to disputes under the TRIPS Agreement. In other words, there are three different types of complaints that could be brought under the TRIPS Agreement. However, Article 64.2 of the TRIPS Agreement excluded non-violation and situation complaints for the first five years from the entry into force of the WTO Agreement. Article 64.3 mandated the Council for TRIPS to examine the scope and modalities for non-violation and situation complaints during the five-year moratorium and to submit recommendations to the Ministerial Conference for approval by consensus.

The five-year deadline of Article 64.2 expired on 31 December 1999, but the TRIPS Council has not so far submitted recommendations to the Ministerial Conference, nor has the Ministerial Conference approved any recommendations in that regard. This has resulted in a controversy among Members over whether, in the absence of an approved recommendation on scope and modalities, complaints of the type set out in Article XXIII:1(b) and 1(c) of GATT 1994 are possible since the expiry of the Article 64.2 moratorium. Despite this controversy, no non-violation and situation complaints were brought by Members under the TRIPS Agreement.

At their fourth ministerial session in 2001, ministers of the WTO Members renewed the moratorium contained in Article 64.2 and directed the TRIPS Council to continue its examination of the scope and modalities for non-violation and situation complaints and to make recommendations to the fifth session of the Ministerial Conference that took place in September 2003.¹ However, the fifth session was concluded without any action on this matter.

Notes:

1. Para. 11.1 of the Doha Decision on Implementation.  back to text