India presses for ban on non-violation complaints under TRIPS pact

Amiti Sen | Updated on February 10, 2020 Published on February 07, 2020

US, Switzerland oppose extension of moratorium on such complaints at WTO

India and a group of like-minded countries including Canada, Bangladesh, South Africa, China and Russia have pressed for a complete ban on non-violation complaints under the TRIPS Agreement at the World Trade Organisation but have said that in the absence of an agreement on the matter the moratorium on such complaints should be extended beyond this year.

At a recent meeting of the TRIPS (Trade Related Intellectual Property Rights) Council at the WTO, where a possible way forward on non-violation complaints was discussed, the US and Switzerland, however, have opposed the extension of the moratorium, a Geneva-based trade official told BusinessLine.

A decision on the matter of extension of the moratorium has to be taken at the forthcoming WTO Ministerial meeting in Kazakhstan in June.

For a long time, WTO members have been arguing about whether countries should have the right to bring dispute cases to the WTO if they consider that another member’s action or a specific situation has deprived them of an expected benefit under the TRIPS Agreement, even if no specific TRIPS obligation has been violated.

“India and some other countries are of the view that 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 official said.

Countries supporting this view include South Africa, Bangladesh, Egypt, Indonesia, Nigeria, China, Chile, Canada, Norway, South Korea and the Russian Federation.

The flexibilities offered under TRIPS Agreement is very important to India, which is a major producer of life-saving generics at low costs, as it allows compulsory licences to be issued for production of the generic version of patented medicines under certain conditions where lives of people are under threat.

It is also important to a number of countries in South America and Africa which do not have the capacities to make generic medicines and are dependent on supplies from countries such as India and Brazil.

The US and Switzerland, however, oppose the extension of the moratorium 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.

“As a consensus on the matter has been eluding members, the moratorium on such cases has been extended from time to time,” the official pointed out.

At the 11th Ministerial Conference in Buenos Aires in December 2017, ministers agreed to once again extend the moratorium on using TRIPS non-violation complaints until the 12th Ministerial Conference on the hope that an agreement could be reached.

At its session of December 10, 2019, the General Council directed once again the TRIPS Council to continue its examination of the scope and modalities for non-violation and situation complaints, and to make recommendations to MC12. It was also agreed that, in the meantime, members will not initiate such complaints under the TRIPS Agreement.

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Published on February 07, 2020
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