DISPUTE SETTLEMENT SYSTEM TRAINING MODULE: CHAPTER
4
Legal basis for a dispute
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4.5
Types of dispute in the TRIPS Agreement
In Article 64.1, the TRIPS Agreement
(which is contained in
Annex
1C of the WTO
Agreement) contains a reference to Articles
XXII and XXIII of
GATT 1994. On that basis, one would say that all the above as explained
in the context of GATT 1994 also applies to disputes under the TRIPS Agreement.
In other
words, there are three different types of complaints that could be brought under
the TRIPS Agreement. However, Article
64.2 of the TRIPS Agreement excluded non-violation and situation complaints
for the first five years from the entry into force of the WTO Agreement. Article 64.3 mandated
the Council for TRIPS to examine the scope and modalities for non-violation and
situation complaints during the five-year moratorium and to
submit recommendations to the Ministerial Conference for approval by consensus.
The five-year deadline of Article
64.2 expired on 31 December 1999, but the TRIPS Council has not so far
submitted recommendations to the Ministerial Conference, nor has the Ministerial
Conference approved any recommendations in that regard. This has resulted
in a controversy among Members over whether, in the absence of an approved
recommendation on scope and modalities, complaints of the type set out in Article
XXIII:1(b) and 1(c) of
GATT 1994 are possible since the expiry of the Article
64.2 moratorium. Despite this controversy, no non-violation and situation
complaints were brought by Members under the TRIPS Agreement.
At their fourth ministerial session in 2001, ministers
of the WTO
Members renewed the moratorium contained in Article
64.2 and directed the TRIPS Council to continue its examination of the
scope and modalities for non-violation and situation complaints and to make
recommendations to the fifth session of the Ministerial Conference that took
place in September 2003.1 However,
the fifth session was concluded without any action on this matter.
Notes:
1. Para. 11.1 of the
Doha Decision on Implementation.
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