‘Non-violation’ complaints (Article 64.2)

Is it possible to have intellectual property disputes in the WTO even if no agreement has been violated? If so, how could they be handled?

In general, disputes in the WTO involve allegations that a country has violated an agreement or broken a commitment. But, in some situations, a WTO Member can go to the Dispute Settlement Body even when an agreement has not been violated. This is called a non-violation complaint. It is allowed if one WTO Member can show that it has been deprived of an expected benefit because of another Member’s action, or because of any other situation that exists.

Non-violation complaints are possible for goods and services (under GATT for goods and market-opening commitments in services). However, in Article 64.2 of the TRIPS Agreement, Members agreed they would not initiate such complaints under the TRIPS Agreement for a period of five years following the entry into force of the WTO Agreement (i.e. 1995–99). In the meantime, Members would discuss how and to what extent (“scope and modalities”) such complaints could be brought to WTO dispute settlement. The agreement not to initiate TRIPS non-violation cases (the "moratorium") and the mandate to discuss scope and modalities were subsequently extended–most recently from the 13th to the 14th Ministerial Conference (WT/L/1194) .

In discussions on the scope and modalities for such complaints under TRIPS, at least two Members have argued that non-violation cases should be allowed and the moratorium should lapse, as that had been the original intention of the drafters. Others have suggested additional safeguards or prefer to see the moratorium continued or made permanent, as they feel such complaints could create legal uncertainty.

News

Background

Recent developments

At the 14th Ministerial Conference (MC14), held in Yaoundé, Cameroon, in March 2026, no agreement on a further extension of the moratorium on TRIPS non-violation and situation complaints was reached. The moratorium, originally foreseen in Article 64.2, thus lapsed on 30 March 2026 with the closure of the Ministerial Conference.