Last updated: 3 December 2009
backgrounder has been prepared by the Information and
External Relations Division of the WTO Secretariat to help
the public understand the main issues. It is not an official
interpretation of the WTO agreements or members’ positions; and because of the need to simplify and summarize, it cannot
cover all nuances or all points of the debate in detail. These can be
found more precisely in the documents cited
In general, disputes in the WTO involve allegations that a country has
violated an agreement or broken a commitment. But in some situations a
government can go to the Dispute Settlement Body even when an agreement
has not been violated. This is called a non-violation complaint. It is
allowed if one government can show that it has been deprived of an
expected benefit because of another government’s action, or because of
any other situation that exists.
The aim is to
help preserve the balance of benefits struck during multilateral
negotiations. For example, a country may have agreed to reduce its
tariff on a product as part of a market access deal, but later
subsidized domestic production so that the effect on the conditions of
competition are the same as the original tariff. A non-violation case
against this country would be allowed to restore the conditions of
competition implied in the original deal.
complaints are possible for goods and services (under GATT for goods and
market-opening commitments in services). However, for the time being,
members have agreed not to use them under the TRIPS Agreement. Under
Article 64.2 this “moratorium” (i.e. the agreement not to use TRIPS
non-violation cases) was to last for the first five years of the WTO
(i.e. 1995–99). It has been extended since then.
At the same
time, the TRIPS Council has discussed whether non-violation complaints
should be allowed in intellectual property, and if so, to what extent
and how (“scope and modalities”) they could be brought to the WTO’s
dispute settlement procedures.
At least two
countries (the US and Switzerland) say non-violation cases should be
allowed in order to discourage members from engaging in “creative
legislative activity” that would allow them to get around their TRIPS
commitments. Most would like to see the moratorium continued or made
permanent. Some have suggested additional safeguards.
The Doha mandate back to top
The Doha Decision on Implementation-Related
Issues and Concerns (in Paragraph 11.1) instructs the TRIPS Council to
make a recommendation to the Cancún Ministerial Conference. Until then,
members agreed not to file non-violation complaints under TRIPS.
In May 2003, the TRIPS Council chairperson
listed four possibilities for a recommendation: (1) banning
non-violation complaints in TRIPS completely, (2) allowing the
complaints to be handled under the WTO’s dispute settlement rules as
applies to goods and services cases, (3) allowing non-violation
complaints but subject to special “modalities” (i.e. ways of dealing
with them), and (4) extending the moratorium.
In response, most members favoured banning
non-violation complaints completely (option 1), or extending the
moratorium (option 4).
However, no consensus was reached at that
time. Since then, the moratorium has been extended from one ministerial
conference to the next, the latest being the extension from the 2011
Geneva Ministerial Conference to the next meeting, which ministers
agreed to hold in 2013.