WTO Members Agree on Recommendation to Extend Moratorium on IP “Non-Violation” Cases

At a meeting of the Council for Trade-Related Aspects of Intellectual Property Rights (TRIPS) on 5 November, WTO members agreed on a draft ministerial decision on so-called non-violation and situation complaints in the area of intellectual property (IP). The decision is expected to be adopted at the WTO’s 12th Ministerial Conference (MC12) to be held in Geneva on 30 November — 3 December.

Under the draft decision, the TRIPS Council would be asked to continue its discussions on this issue and to make recommendations to the 13th WTO Ministerial Conference. In the meantime, members would refrain from bringing such cases to the dispute settlement system. This so-called "moratorium" has been extended several times, from one Ministerial Conference to the next.

Non-violation and situation complaints refer to whether and under what conditions members should be able to bring WTO dispute complaints where they consider that another member's action, or a particular situation, has deprived them of an expected advantage under the TRIPS Agreement, even though no obligation under the Agreement has been violated.

Members have historically differed on whether such non-violation cases are feasible in intellectual property. Some delegations consider non-violation complaints 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. Others 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 and favour their complete ban in the TRIPS area.

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 the General Council Decision of 10 December 2019 on "TRIPS Non-Violation and Situation Complaints" (WT/L/1080), 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 the 13th Ministerial Conference. It is agreed that, in the meantime, Members will not initiate such complaints under the TRIPS Agreement."

The chair of the TRIPS Council, Ambassador Dagfinn Sørli of Norway, thanked members for their engagement and cooperation on this matter. "I should hope that having adopted this recommendation well ahead of MC12 will send a positive signal to Ministers, and will allow us to focus on the other items on our agenda that still remain to be resolved," he said.