This is from a submission by a number of WTO Members who are skeptical of allowing non-violation and situation complaints -- through the removal of the current moratorium on those complaints -- under the TRIPS Agreement:
Non-violation and situation complaints are unnecessary to protect any balance of rights and obligations inherent in the TRIPS Agreement, as these are reflected in the Agreement's principal obligations and flexibilities, and the Agreement explicitly states that WTO Members are not obliged to implement more extensive protection (Article 1).
The whole submission is worth reading, but to narrow the issues, I wanted to focus on the point that I quoted. Here's my question about it. Is the TRIPS Agreement really all that different from other WTO agreements? Don't the GATT (along with the other trade in goods agreements) and the GATS also have a comprehensive set of rights and obligations that offer a carefully constructed balance? GATT and GATS are not just about concessions. Any such concessions are reinforced by substantive obligations and exceptions (which we are all well aware of because that's what most of the case law is about). So, if we don't need non-violation and situation complaints for TRIPS, maybe we don't need them at all.
More on these issues from the Spicy IP blog here. An excerpt:
In yet another “Indian Pharma Patent Policy” centric international development, an article from LiveMint (view here), reports that India’s Section 3(d) may be facing pressure from a relatively unexplored angle. According to the article, US and Switzerland may be coming up with a creative approach to bring India to the WTO dispute settlement system. Up till now, despite all the pressure by US, India’s pharmaceutical patent provisions had not been challenged at the WTO arena, presumably because any such challenge would be a very weak one, as India’s pharma patent provisions are considered TRIPS compliant (see e.g., latter part of this piece). Now, it appears that US and Switzerland want bring to life a provision which would allow a member to bring complaints to the WTO even if the TRIPS Agreement was not being violated!
While this at first seems very worrying, with an almost colonial flavour to it, further study shows that not only may this be an empty threat, but even if it was carried out, there is a chance this provision could be used to bring a WTO challenge against the US, EU, etc for insisting on TRIPS plus provisions!! This post will try to expand on what this provision is, whether it could be used against India if it comes back to life, and finally, if it’s revival means that conversely, US, EU, etc can be challenged at the WTO level for insisting on TRIPS+ provisions.
