TENTH WTO MINISTERIAL CONFERENCE, NAIROBI, 2015
Briefing note: "Non-violation" in intellectual property
WTO agreements allow members to bring cases against each other if they feel that another government’s action or a specific situation has deprived it of an expected benefit, even if no agreement has been violated.
But opinions differ among WTO members on whether these so-called non-violation cases should also apply to intellectual property. A few members argue that these types of complaints should apply in this area since members have obtained sufficient guidance and experience from the dispute settlement system to understand how non-violation would apply in the case of protection of intellectual property. Some members remain open-minded on the issue. However, most members see no place for the application of non-violation complaints in the area of intellectual property because they fear legal insecurity and curtailment of flexibilities.
The Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement contains a temporary restraint (a “moratorium”, Article 64.2) on bringing non-violation complaints, during which time members should discuss any modalities on their application under TRIPS, and make recommendations to the Ministerial Conference. Due to ongoing disagreement on this matter, members have agreed to extend this temporary restraint several times, most recently at the Bali Ministerial Conference in 2013, when the moratorium was extended until the 2015 Ministerial Conference.
Since Bali, members' discussions on this long-standing issue have intensified, with new or revised submissions from both sides of the debate but the known positions of delegations have not changed substantially. As in the past when the issue has been discussed, the TRIPS Chair suggested that there were four options with respect to what the TRIPS Council could recommend to the Ministerial Conference:
- banning non-violation complaints in TRIPS completely
- allowing the complaints to be handled under the WTO’s dispute settlement rules as they apply to other areas, such as to goods and services
- allowing non-violation complaints but subject to “modalities” (i.e. conditions or limits on their application)
- extending the moratorium (for another fixed period) to continue discussions.
WTO members meeting as the TRIPS Council agreed on 23 November 2015 on a draft ministerial decision on non-violation cases in intellectual property. The decision is expected to be adopted at the Nairobi Ministerial Conference in December.
Under the draft decision, the TRIPS Council would be asked to continue its discussions on whether non-violation disputes should apply to intellectual property, and to make recommendations to the next Ministerial Conference to be held in 2017. In the meantime, WTO members would refrain from bringing such cases to the dispute settlement system. A number of members emphasized that discussions on a permanent solution to this question should begin immediately after the Nairobi Ministerial Conference.
The draft decision on “TRIPS non-violation and situation complaints” for the Ministerial Conference says:
“We take note of the work done by the Council for Trade-Related Aspects of Intellectual Property Rights pursuant to our Decision of 7 December 2013 on "TRIPS Non-Violation and Situation Complaints" (WT/L/906), and direct it 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 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 Agreement.”