‘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 government 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 government can show that it has been deprived of an expected benefit because of another government’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, for the time being, members have not yet agreed on whether and how such complaints could be used under the TRIPS Agreement. Under Article 64.2 a “moratorium” (i.e. the agreement not to use TRIPS non-violation complaints) was to last for the first five years of the WTO (i.e. 1995–99), after which members were to make recommendations to the Ministerial Conference. This moratorium has been extended a number of times since then.
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At the 11th Ministerial Conference in Buenos Aires in December 2017 ministers agreed to once again extend the moratorium until the 12th Ministerial Conference in 2019. During this period, discussions on the applicability of these types of disputes to the TRIPS Agreement should continue.
The Ministerial Decision on “TRIPS non-violation and situation complaints” of 13 December 2017 says:
“We take note of the work done by the Council for Trade-Related Aspects of Intellectual Property Rights pursuant to our Decision of 19 December 2015 on "TRIPS Non-Violation and Situation Complaints" (WT/L/976), 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 in 2019. It is agreed that, in the meantime, Members will not initiate such complaints under the TRIPS Agreement.”