[A2k] Seventh WTO Ministerial will take decision on IPR 'non-violation' violations and 'ecommerce

Wed Dec 2 15:35:02 2009

http://keionline.org/node/703

Seventh WTO Ministerial will take decision on IPR 'non-violation'
violations and 'ecommerce'
By thiru
Created 1 Dec 2009 - 7:52am

The Seventh WTO Ministerial Conference [1] is taking place in Geneva,
Switzerland from November 30, 2009 to December 2, 2009. Unlike
previous Ministerial Conferences in Seattle (1999), Doha (2001),
Cancun (2003) and Hong Kong (2005), the Geneva Ministerial is a non-
negotiation. This hum drum affair is being held only because of the
obligations of Article IV, paragraph 1 of the WTO Agreement which
states that

     [t]here shall be a Ministerial Conference composed of
representatives of all the Members, which shall meet at least once
every two years. The Ministerial Conference shall carry out the
functions of the WTO and take actions necessary to this effect. The
Ministerial Conference shall have the authority to take decisions on
all matters under any of the Multilateral Trade Agreements, if so
requested by a Member, in accordance with the specific requirements
for decision-making in this Agreement and in the relevant Multilateral
Trade Agreement.

Two draft texts for decision by Ministers include a recommendation by
the WTO TRIPS Council to to extend the moratorium on "non-violation
and situation complaints" till 2011 and a recommendation by the WTO
General Council to extend the moratorium on customs duties on e-
commerce till 2011. Both of these decisions have been described by WTO
insiders as mere formalities.

Draft decision (IP/C/52/Add.1) of the TRIPS Council on Non-Violation
and Situation Complaints which can be found on this link [2] states
the following:

     "We take note of the work done by the Council for Trade-Related
Aspects of Intellectual Property Rights pursuant to paragraph 11.1 of
the Doha Decision on Implementation-Related Issues and Concerns and
paragraph 45 of the Hong Kong Ministerial Declaration, 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, which
we have decided to hold in 2011. It is agreed that, in the meantime,
Members will not initiate such complaints under the TRIPS Agreement."

According to the WTO briefing note [3] on non-violation complaints, in
certain situations (for goods and services but not for intellectual
property), a WTO Member can use the WTO dispute settlement mechanism
even if an agreement has not been violated. The WTO briefing note
states that a non-violation complaint is permitted if a Member "can
show that it has been deprived of an expected benefit because of
another government=92s action, or because of any other situation that
exists. At least two countries (the US and Switzerland) say non-
violation cases should be allowed in order to discourage members from
engaging in =93creative legislative activity=94 that would allow them to
get around their TRIPS commitments." If and when the moratorium on non-
violation complains is lifted, one wonders what "creative legislative
activity" related to intellectual property, the governments of the
United States and Switzerland would target.

Links:
[1] http://www.wto.org/english/thewto_e/minist_e/min09_e/min09_e.htm
[2] http://www.wto.org/english/thewto_e/minist_e/min09_e/official_doc_e.htm
[3] http://www.wto.org/english/tratop_e/trips_e/nonviolation_background_e.h=
tm

------------------------------------------------------------

Thiru Balasubramaniam
Geneva Representative
Knowledge Ecology International (KEI)
thiru@keionline.org

Tel: +41 22 791 6727
Mobile: +41 76 508 0997