DISPUTE SETTLEMENT

DS: Saudi Arabia — Measures concerning the Protection of Intellectual Property Rights

This summary has been prepared by the Secretariat under its own responsibility. The summary is for general information only and is not intended to affect the rights and obligations of Members.

  

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Summary of the dispute to date

The summary below was up-to-date at

Consultations

Complaint by Qatar

On 1 October 2018, Qatar requested consultations with Saudi Arabia concerning Saudi Arabia's alleged failure to provide adequate protection of intellectual property rights held by or applied for entities based in Qatar.

Qatar claimed that the measures appear to be inconsistent with:

  • Articles 3.1, 4, 9, 14.3, 16.1, 41.1, 42 and 61 of the TRIPS Agreement.

On 12 October 2018, the Russian Federation requested to join the consultations.

 

Panel and Appellate Body proceedings

On 9 November 2018, Qatar requested the establishment of a panel. At its meeting on 4 December 2018, the DSB deferred the establishment of a panel.

At its meeting on 18 December 2018, the DSB established a panel. Australia, Bahrain, Brazil, Canada, China, the European Union, India, Japan, Korea, Mexico, Norway, Russia, Singapore, Chinese Taipei, Turkey, Ukraine, the United Arab Emirates, the United States and Yemen reserved their third-party rights.

On 6 February 2019, Qatar requested the Director-General to compose the panel. On 18 February 2019, the Director-General composed the panel.

On 5 August 2019, the Chair of the panel informed the DSB that the panel expected to issue its final report to the parties in the first quarter of 2020. The Chair also informed the DSB that the report would be available to the public once it was circulated to the Members in all three official languages, and that the date of circulation depends on completion of translation.

On 16 June 2020, the panel report was circulated to Members.

The Panel first addressed Saudi Arabia's request that the Panel decline to make any findings or a recommendation in this dispute. While Saudi Arabia did not present the Panel with any arguments formulated in terms of the Panel's “jurisdiction” or the “justiciability” of the dispute, several third parties construed Saudi Arabia's arguments as implying that Saudi Arabia regarded the matter as “non-justiciable”. Recognizing that there was a degree of overlap between the third parties' arguments presented in terms of “justiciability”, on the one hand, and the arguments presented by the parties and third parties in relation to Saudi Arabia's argument that the Panel should decline to make any findings or recommendation based on Articles 3.4, 3.7 and 11 of the DSU, on the other hand, the Panel proceeded to address the specific arguments which had been presented by Saudi Arabia. The Panel concluded that Saudi Arabia had not identified any basis upon which the Panel could decline to exercise its jurisdiction over the claims of WTO‑inconsistency that fell within its terms of reference, and that the matter was justiciable.

With respect to Qatar's claims under Parts I, II and III of the TRIPS Agreement, the Panel found that Qatar had established that Saudi Arabia had taken measures that, directly or indirectly, had the result of preventing beIN from obtaining Saudi legal counsel to enforce its IP rights through civil enforcement procedures before Saudi courts and tribunals, and thus, Saudi Arabia acted in a manner inconsistent with Article 42 and Article 41.1 of the TRIPS Agreement. The Panel further found that Qatar had established that Saudi Arabia had not provided for criminal procedures and penalties to be applied to beoutQ despite the evidence establishing prima facie that beoutQ was operated by individuals or entities under the jurisdiction of Saudi Arabia, and thus, Saudi Arabia acted inconsistently with Article 61 of the TRIPS Agreement. In the light of these findings, the Panel found that it was unnecessary to make findings on Qatar's additional claims under Parts I and II of the TRIPS Agreement.

With respect to Saudi Arabia's invocation of the security exception in Article 73(b)(iii) of the TRIPS Agreement, the Panel found that the requirements for invoking Article 73(b)(iii) were met in relation to the inconsistency with Article 42 and Article 41.1 of the TRIPS Agreement arising from the measures that, directly or indirectly, had the result of preventing beIN from obtaining Saudi legal counsel to enforce its IP rights through civil enforcement procedures before Saudi courts and tribunals. However, the Panel found that the requirements for invoking Article 73(b)(iii) were not met in relation to the inconsistency with Article 61 of the TRIPS Agreement arising from Saudi Arabia's non-application of criminal procedures and penalties to beoutQ.

On 28 July 2020, Saudi Arabia notified the DSB of its decision to appeal to the Appellate Body certain issues of law and legal interpretations in the panel report.

 

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