Bridges Weekly Trade News Digest • Volume 13 • Number 39 • 11th November 2009

Members Approve Ministerial Wording on ‘TRIPS Non-Violation’, E-Commerce

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With less than three weeks remaining before trade ministers descend on Geneva for the WTO’s seventh ministerial conference, trade delegates at the organisation’s headquarters are preparing wording for a ministerial decision to be issued at the meeting’s close.

The delegates found agreement on wording on two issues - ‘TRIPS non-violation complaints’ and electronic commerce - at a 6 November meeting of the TRIPS Council (the Council of the WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights).

The first issue, ‘non-violation complaints’ under the TRIPS Agreement, concerns whether countries should be allowed to bring WTO dispute cases on the grounds that the spirit, but not the letter, of the TRIPS Agreement has been violated. The WTO allows such non-violation complaints for trade in goods and services, but there has been a ban on IP-related cases since the organisation’s founding in 1995. The prohibition was meant to last five years, but it has been extended at ministerial conferences ever since.

The United States and Switzerland, two countries that are home to industries that stand to benefit from robust intellectual property protections, have long insisted that the moratorium should be lifted. They argue that the continuation of the ‘non-violation’ ban leaves open the possibility that countries could use ‘creative legislative activity’ to infringe on intellectual property rights that are nominally protected by the TRIPS Agreement.

But supporters of the ban argue that the notion of a non-violation complaint is questionable under TRIPs. The agreement does not grant members any market access rights, the detractors say, and non-violation complaints should be limited to cases where a member is deprived of such access.

But the difference of opinion has been settled, at least for the time being. Members agreed on Friday to recommend that ministers should extend the moratorium on ‘TRIPS non-violation complaints’. Delegates also suggested that ministers recommend that the matter be taken up at the WTO’s next ministerial conference, which is planned for 2011.

“It is agreed that, in the meantime, members will not initiate such complaints under the TRIPS Agreement,” the statement says.

The discussions on TRIPS non-violation occurred hand-in-hand with negotiations on ministerial wording on electronic commerce, a subject that is usually taken up by the WTO’s General Council. On e-commerce, delegates also agreed to recommend an extension of the current moratorium on import tariffs on goods bought and sold online. A ban on the measures has been in place since the WTO’s second ministerial conference in 1998, when WTO members agreed to refrain from “imposing customs duties on electronic transmissions.”

ICTSD reporting.