4 NON VIOLATION COMPLAINTS

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 governments 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.
Non-violation 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. 199599). 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 WTOs 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 Cancn 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 WTOs 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