WTO Stalemate Concerns Include Non-Violation Complaints, E-Commerce; TRIPS Health Amendment Extended

A few weeks after the failure of the World Trade Organization ministerial meeting in Buenos Aires to cut deals advancing issues from fisheries to e-commerce, some governments and trade experts around the world are concerned about the WTO’s future. Meanwhile, a couple of intellectual property-related provisions  moved ahead after the ministerial without change.

Last month’s ministerial in Buenos Aires showed a good turnout

Kris Kiptoo, principal secretary, State Department for Trade, and chairperson, National Trade Negotiation Council & National Trade Facilitation Committee of Kenya, in an opinion piece for the Kenyan daily “The Star” this week talked about “missed opportunities.”

Trade ministers in Buenos Aires “did not also agree even on relatively minor proposals on e-commerce and fishing subsidy,” Kiptoo wrote. While regretting the lack of results, he acknowledged the commitment to move forward and undertake negotiations on continuing work in agriculture, non-agricultural market access, services, development, TRIPS (Agreement on Trade-Related Aspects of Intellectual Property Rights), WTO rules, and also trade and environment.

Kiptoo said African countries might eye African regional trade agreements as a substitute instead.

Seventh Extension of Non-Violation Complaints for TRIPS

The linked extensions of the two moratoriums on the ban for non-violation complaints under TRIPS and on tariffs and duties for electronic goods aptly illustrate the stalemate at the WTO. For a seventh time, the temporary ban of so-called non-violation complaints in intellectual property was just extended, instead of ministers coming to a final decision on the issue. Options on the table for 15 years include a permanent ban as well as “allowing non-violation complaints but subject to special ‘modalities’.”

Developing countries in particular are concerned over non-violation complaints (NVCs) for IP-related cases. The non-violation cases can be filed, according to the WTO, when parties feel they have been “deprived of an expected benefit because of another government’s action, or because of any other situation that exists.”

“Applying NVC in the TRIPS Agreement can introduce legal uncertainties and incoherence between the WTO agreements which is likely to further increase public concern over the impact of the TRIPS Agreement on important issues like biodiversity protection, transfer of technology and public health,” Shirin Syed, research scholar at North Maharashtra University in Jalgaon, India, wrote in a short analysis published during the ministerial. “It could prevent developing countries “from effectively using flexibilities concerning public health in the TRIPS Agreement.”

TRIPS and Health Amendment Deadline Extended

One agreement that passed by Buenos Aires was on the TRIPS public health amendment. Alongside the extension of the ban for non-violation complaints under TRIPS, the WTO TRIPS Council shortly before the ministerial agreed to also extend the period [doc WT/L/1024 dated 30 November 2017] for WTO members to adopt the 2005 TRIPS public health amendment until 31 December 2019. It was agreed at the ministerial [clarification: ministers did not agree to this, rather they did not address it, so the earlier Council agreement stands] to accept this extension, so countries that haven’t done so now have two more years to adopt the TRIPS public health amendment. The amendment became effective in January 2017 (IPW, WTO/TRIPS, 23 January 2017).

The amendment allows for more medical products produced under compulsory licences to be exported (a map of those who already implemented is here).

Meanwhile, Syed pointed out that a need for policy space on e-commerce in developing countries should not be traded for the IP non-violation complaints. But in Buenos Aires, both moratoriums were kept for another two years, resulting in 70 WTO member states now opening their side-negotiation on e-commerce.

More talk on this e-commerce special agenda will likely be on the agenda of the upcoming World Economic Forum annual meeting, as the WTO announced cooperation with the World Economic Forum on a platform to talk about digital trade.

William New contributed to this report.