Trade-related Aspects of Intellectual Property Rights (TRIPS)
Non-violation complaints in intellectual property

To date, only a dozen WTO dispute settlement proceedings have been initiated which involve non-violation complaints. None of those non-violation complaints have been successful.

Under Article 64.2 of the TRIPS Agreement, a “moratorium” was established prohibiting non-violation complaints on IP rights for the first five years after the establishment of the WTO (i.e. 1995–99), after which members were to make recommendations to the Ministerial Conference, the WTO's highest decision-making body, for approval. This moratorium has been extended a number of times since, from one Ministerial Conference to the next.

At the 10th Ministerial Conference (MC10) in Nairobi, it was decided once again to extend the moratorium until the 11th Ministerial Conference (MC11) in Buenos Aires in 2017. A number of members emphasized at the time that discussions on a permanent solution to this question should begin immediately after Nairobi, but little progress has been achieved since.

At this point, the negotiations remain open on the extension of the moratorium for another two years. A recommendation to extend the moratorium along the lines of the Nairobi ministerial decision of 2015 has obtained wide support among members but there is not yet consensus on a decision for submission to MC11.   

Two members – the United States and Switzerland – have expressed their opposition to the extension on the grounds that the non-violation complaints are essential to maintaining the proper balance of rights and obligations within the TRIPS Agreement while helping to ensure that legitimate obligations are not circumvented or avoided.

Most other delegations, while preferring a complete ban of non-violation complaints under the TRIPS Agreement, have argued that, in the absence of an agreement on this issue, they could join consensus in support of a recommendation to MC11 to extend the moratorium for two additional years.

These members believe there is no place for the application of non-violation complaints in the area of intellectual property because of the legal insecurity and curtailment of flexibilities that could ensue.

The chair of the TRIPS Council, Ms Irene Young (Hong Kong, China), was asked to make available an informal text that would show what the Council's recommendation to MC11 would look like if it were to be modelled on the earlier MC10 extension, on the understanding that it was meant only to facilitate discussion and was without prejudice to members' positions.

This item therefore remains open. The chair has urged members to keep looking at this issue and exercise more flexibility. If and when members are in a position to reach consensus, the TRIPS Council would be reconvened at short notice so that a recommendation could be transmitted to MC11 for approval.  

Update

Ministers directed the TRIPS Council to continue its examination of the scope and modalities for non-violation complaints and to make recommendations to the next Ministerial Conference in 2019. They agreed that, in the meantime, WTO members will not initiate such complaints under the TRIPS Agreement.