WORLD TRADE
ORGANIZATIONIP/C/W/349
19 June 2002
(02-3402)
Council for Trade-Related Aspects
of Intellectual Property Rights
NON-VIOLATION AND SITUATION COMPLAINTS
Summary Note by the Secretariat
1. At its meeting on 5-7 March 2002, the Council requested the Secretariat to prepare a
summary paper of the points raised in the substantive discussion of this agenda item so far.1  This note
has been prepared in response to that request.  It does not address the status of the moratorium or
procedural suggestions as these are not substantive issues in this discussion.  Being a summary, this
note is not exhaustive and is prepared for the assistance of Members in continuing the substantive
discussion of this agenda item.  Reference should be made to the complete record of the discussion ascontained in the papers submitted by delegations and minutes of meetings listed in the Annex for a
complete picture.
2. Article 64.3 of the TRIPS Agreement required the Council to examine the scope and
modalities for complaints of the types provided for under Article XXIII:1(b) and (c) of GATT 1994
made pursuant to the TRIPS Agreement (so-called "non-violation and situation complaints") and
make recommendations to the General Council by the end of 1999.  There was a suggestion that this
item should form part of the Council's work programme at its first meeting in March 1995, but theCouncil did not have an initial exchange of views on it until its meeting in December 1998.  The
Council has been discussing the subject since then.  Various delegations have submitted papers and, at
the Council's request, the Secretariat prepared a factual background note, which focused primarily on
experience with non-violation complaints unde r the GATT/WTO (IP/C/W/124).  In 2001, the Chair
circulated some headings which could be used to organize further discussions, which were based onthe sub-headings in part of the Secretariat note (JOB(01)/70).  These papers and notes are listed in the
Annex.
3. On 14 November 2001 in Doha, the Ministerial Conference addressed the issue in its
Decision on Implementation-Related Issues and Concerns as follows:
"The TRIPS Council is directed to continue its examination of the scope and modalities for
complaints of the types provided for under subparagraphs 1(b) and 1(c) of Article XX III of
GATT 1994 and make recommendations to the Fifth Session of the Ministerial Conference.
It is agreed that, in the meantime, Members will not initiate such complaints under the TRIPS
Agreement."
 2
                                                     
1 See the minutes of that meeting, document IP/C/M/35, paras. 280-281.  The annotated agenda which
the Council requested will be circulated separately.
2 WT/MIN(01)/17, para. 11.1.This document has been prepared under the Secretariat's own
responsibility and without prejudice to the positions of Members
and to their rights  and obligations  unde r the WTOIP/C/W/349
Page 2
4. This paper begins with a summary of comments on the exceptional character and purpose of
the non-violation remedy. It then addresses the five headings circulated by the Chairperson in
Job(01)/70: nature of benefits, measures, causality, burden of demonstration of nullification and
impairment and remedy.  It then summarizes where Members have expressed a need for guidance and
their proposals for action.  It concludes with brief sections on situation complaints and complaintsalleging impediment to attainment of an objective of the Agreement.
I. EXCEPTIONAL CHARACTER OF THE NON-VIOLATION REMEDY
5. The view has been expressed that non-violation nullification and impairment (the "non-
violation remedy") has an exceptional character.
3  It has been noted that the Panel in Japan - Film
considered that "the non-violation remedy should be approached with caution and should remain an
exceptional remedy" .4  The view has been expressed that non-violation complaints could only succeed
under the TRIPS Agreement in a very limited number of cases.5  It has been argued that neither the
existence of safeguards nor the limited number of cases is relevant to the question whether non-
violation complaints should be admissible in the TR IPS context and, if so, on what conditions and
within what limits.6  It has been suggested that the exceptional character of the remedy could have a
bearing on the scope of non-violation complaints entertained under the TRIPS Agreement.7
II. PURPOSE OF THE NON-VIOLATION REMEDY
6. It has been recalled that the Appellate Body said in its report on India – Patents  that:
"Under Article XXIII:1(b) of the GATT 1994, a Memb er can bring a "non-violation" complaint
when the negotiated balance of concessions between Members is upset by the application of a
measure, whether or not this measure is inc onsistent with the provisions of the covered
agreement.  The ultimate goal is not the w ithdrawal of the measure concerned, but rather
achieving a mutually satisfactory adjustment, usually by means of compensation." 8
7. It has been noted that experience with the non-violation remedy under GATT usually
concerned the benefits of negotiated tariff concessions .9  It has also been noted that three GATT
panel reports also considered non-violation claims based on general obligations rather than specifictariff concessions and found that GATT Article XXIII:1(b) is not limited to tariff benefits.
10
8. It has been argued that the non-violation remedy is intended to protect reciprocal tariff
concessions and is simply inapplicable in the context of the TRIPS Agreement.11  I t  h a s  b e e n
questioned whether the non-violation remedy is relevant to the TRIPS Agreement because it was a
                                                     
3 IP/C/M/28, para.192.  See IP/C/W/249, Sec. II, p. 1.  Similar statements can be found at IP/C/M/22,
para. 145; IP/C/M/21, para 120; IP/C/M/23, para. 117;  IP/C/M/23, para.122; IP/C/M/23, para. 126; IP/C/M/24,
para. 105;  IP/C/M/24, para. 106;  IP/C/M/26, para  104;  IP/C/M/27, para. 162;  IP/C/M/27, para. 164;
IP/C/M/29, para. 223; IP/C/M/29, para. 225; IP /C/M/30, para. 203;  IP/C/M/32, para. 153.
4 IP/C/W/212, sec. IV, p.7, citing Panel Report on Japan - Film , WT/DS44/R, para. 10.37.  See also
IP/C/W/127, Issues of Concern , p.2.  Similar statement can be found at  IP/C/M/30, para. 204;  IP/C/M/22,
para. 136;  IP/C/M/28, para. 192; IP/C/M/32, para. 156.
5 IP/C/W/194, p.4 .
6 IP/C/M/24, para. 105.
7 IP/C/W/212, page 8.
8 WT/DS50/AB/R, para. 41, cited at IP/C/W/194, p.6.
9 IP/C/W/124, paras. 27-28.
10 1985 Panel Report, European Economic Community - Production Aids Granted on Canned Peaches,
Canned Pears, Canned Fruit Cocktail and Dried Grapes , L/5778, not adopted;  1988 Panel Report on Japan -
Semi-conductors ;  and 1990 Panel Report on United States - 1955 Waiver , cited in IP/C/M/212 at p.6 and
IP/C/W/124, Annex 4.
11 IP/C/M/23, para. 111.IP/C/W/349
Page 3
remedy created to deal with the negating of tariff concessions12 and it is difficult to see the analogy
between tariff concessions or specific services commitments, on the one hand, and the multilateral
recognition of the minimum rights of nationals to be provided for by a WTO Member on the basis of
the TRIPS Agreement, on the other hand.13  It has been argued that the minimum standards at the
national level have sufficient guarantees under the TRIPS enforcement provisions14, because right
holders can have recourse to domestic courts in respect of benefits derived from protection.15
9. It has been argued that the non-violation remedy would provide security and predictability
and help ensure that the TRIPS Agreement's flexibility is not misused in order to avoid legitimate
obligations .  Failure to allow the possibility of non-violation complaints under the TRIPS Agreement
would ultimately invite creative law- and regulation-writing by any Members that might be
dissatisfied by particular provisions of the TRIPS Agreement and which wished to avoid obligations.
The TRIPS Agreement is part of the multilateral tr ading system and should provide Members with the
same security and predictability that is available in relation to other WTO agreements.16
10. It has been argued that the non-violation remedy is an important element of the WTO dispute
settlement system17 and that there is a need to maintain coherence among the different WTO
agreements .18  It has been argued that there is no substantial difference between GATT, GATS and
the TRIPS Agreement and that, as the TRIPS Agreement is one of the pillars of the WTO system, theprinciple of non-violation clearly applies also to it.
19
11. In response, it has been argued that merely because the non-violation remedy might be proper
under the GATT does not make it proper under the TRIPS Agreement20 and that the TRIPS
environment is different from the GATT and the GATS environments.21  It has been noted that the
scope of the remedy has been reduced under Article XXIII:3 of GATS which limits non-violationcomplaints under that Agreement to benefits accruing from specific commitments undertaken by
Members.
22
12. It has been noted that the TRIPS Agreement was negotiated as part of the Uruguay Round, the
results of which were part of an overall package in which concessions in one area under negotiation
were made in exchange for benefits in another. There is also an exchange of rights and obligationswithin the Agreement itself in the form of certain limitations and exceptions in relation to various
forms of intellectual property.
23  It has been argued that delaying further the application of the non-
violation remedy to the TRIPS Agreement would upset the equilibrium of concessions reached during
the Uruguay Round.24  In response, it was argued that the introduction of the non-violation remedy
under the TRIPS Agreement, particularly without a proper understanding of the issue, might unsettle
its delicate balance of rights and obligations25 or cause it to undergo significant change.26
                                                     
12 IP/C/M/23, para. 111.
13 IP/C/M/22, para. 142.
14 IP/C/M/23, para. 126.
15 IP/C/M/21, para. 120.
16 IP/C/M/23, para. 114.
17 IP/C/M/21, para. 124.
18 IP/C/M/27, para. 165.
19 IP/C/M/27, para. 177.
20 IP/C/M/22, para. 146.
21 IP/C/M/22, para. 144.
22 IP/C/M/32, para. 156.
23 IP/C/W/194, Appendix, Issues of Concerns to  Other Members, Uncertainty as to Scope, p.8.
24 IP/C/W/194, Appendix, Legal Basis for the Position of the US Regarding Expiration of the
"Moratorium" on Non-Violation Cases, p.7.
25 IP/C/M/24, para. 105.
26 IP/C/M/23, para. 111.IP/C/W/349
Page 4
13. It has been argued that international law  has not evolved in such a way that states or
Members can be penalized for acts or omissions for which they are not otherwise responsible.  In
international law, the rule still is that one is liable for the consequences of breaches of contract or acts
which constitute a tort.  The concept of non-violation complaints goes further than this.  It seeks to
render a Member liable for situations in which it has not violated any agreement and even forsituations over which it has no control.
27  The International Law Commission has been working on the
issue of international liability of states for acts no t contrary to law, in particular those resulting in
transboundary damage, but even it has not yet reached any conclusions.28  It has been argued that
WTO law is not immune from general principles of international law, which distinguish between
primary obligations and secondary obligations.  The non-violation concept entails a secondary
obligation – to remedy the consequences of a violation of a primary obligation – without a primary
obligation – no obligation has been violated – which, in itself, is a unique notion in international law.It existed in GATT 1947 with the safeguard of the positive consensus rule, but now the negative
consensus rule has changed the situation.
29
III. NATURE OF BENEFITS ACCRUING UNDER THE TRIPS AGREEMENT
14. Much of the substantive discussion of this item has concerned essential elements of a non-
violation claim.  Certain issues of procedure and remedy have also been raised.  Paragraph 1(b) of
Article XXIII of GATT 1994 refers to the nullification or impairment of a benefit  accruing to a
Member directly or indirectly under an agreement as a result of  the application by another Member
of any measure , whether or not it conflicts with the provisions of this Agreement.  Article 26.1 of the
DSU requires the complaining party in such cases to present a detailed justification  in support of its
complaint and that, to remedy  a case of non-violation, there is no obligation to withdraw the measure.
(a) Objectives and principles
15. It has been argued that an assessment of benefits and objectives of the TRIPS Agreement
should pay heed to the stated objectives and the Preamble to the Agreement.   The relevant factors in
relation to benefits under TRIPS could include:  adequate standards and principles concerning the
availability, scope and use of intellectual property rights;  the balance of rights and obligations;  thepromotion of technological innovation and transf er and dissemination of technology;  the mutual
advantage of producers and users of technological knowledge;  social and economic welfare;  and
ensuring that intellectual property right enforcement does not impede legitimate trade.
30
16. It has been argued that the Council needs to take into account the role played by the
objectives and principles of the Agreement in Articles 7 and 8.  The TRIPS Agreement is intended to
achieve a balance between the protection of intellectual property rights and other social and economic
policies and it is important that Members have the necessary flexibility to adjust intellectual propertyrights to maintain the desired balance.
31  It has been said that the status of Articles 7 and 8 of the
TRIPS Agreement does not seem to be exactly the same as Article XX of GATT 1994 since Article 8
is subject to the other provisions of the Agreement.32
17. It has been argued that the TRIPS Agreement's connection with market access lies only in its
basic principles as enunciated in Part I, including national treatment, MFN treatment, the objectives of
                                                     
27 IP/C/M/23, para. 120.
28 IP/C/M/23, para. 126.  Note : The International Law Commission at its 54th session on 17 April 2002
issued the 5th report on unilateral act of States (A/CN.4/525/Add. 1).
29 IP/C/M/27, para. 182.
30 IP/C/W/212, Section B, p.4.
31 IP/C/M/28, para. 193.
32 Job(00)/6166, paras.17-18.IP/C/W/349
Page 5
transfer and dissemination of technology and the reasonable expectations of transfer and
dissemination through the promotion of technological innovation.33
(b) Intellectual property protection
18. The TRIPS Agreement provides minimum standards with regard to the acquisition or
exploitation of intellectual property rights and on their scope, as well as procedures and measures toenforce those rights, notably by enabling effective action against unauthorized use of those rights by
third parties.  It has been suggested that complain ts could be considered as falling within a possible
ambit of a non-violation case under the TRIPS Agreement when they are primarily linked to benefits
that can reasonably be expected to result from the conferral of intellectual property rights and their
exclusivity, i.e. those that are specific to the TR IPS Agreement, rather than to any resulting economic
returns which are covered by market access concessions under the GATT or the GATS.  Cases where
limitations on the availability, maintenance and enforcement of an intellectual property right are thespecific object of a complaint might fall within this category. When (a restriction on) market access is
the principal object of a complaint, by contrast, this should be filed exclusively under the relevant
procedures provided in the GATT and GATS.
 34 The reasonable expectations under Part II onwards
were only of the minimum standards prescribed and not market access.35
19. It has been noted that Article 63.1 of the TRIPS Agreement defines the "subject-matter of this
Agreement" as "the availability, scope, acquisition, enforcement and prevention of the abuse of
intellectual property rights".36  It has been argued that, even if the TRIPS Agreement is a market
access agreement, it has its own distinctive character and, therefore, additional considerations are
more or less needed to analyse the application of non-violation under it.37
(c) Exploitation of rights
20. It has been argued that the "benefit" conferred under the TRIPS Agreement is the ability to
"acquire, maintain and enforce" intellectual property rights.  This "benefit" does not automatically
concern the exploitation of the subject-matter of those rights.  There are also different forms of non-
economic benefits to consider.38  The TRIPS Agreement provides patentees only the right to prevent
third parties from taking certain actions;  it does not guarantee the patentee that it can exploit its rightsif other provisions of law, otherwise consistent with the WTO agreements, prohibit that exploitation.
39
(d) Market access
21. It has been argued that the TRIPS Agreement is a market access agreement because it helps
reduce market distortions that existed prior to its negotiation by establishing adequate standards and
principles concerning the availability, scope and use of trade-related intellectual property rights and
by ensuring that effective and appropriate means for the enforcement of those rights are available
without themselves becoming barriers to legitimate trade.40  Its preamble begins with the words
"Members, desiring to reduce distortions and impediments to international trade …".
22. In response, it has been argued that the results of WTO market access negotiations were
recorded in national schedules of concessions annexed to the Uruguay Round Protocol that formed an
integral part of the Final Act.  This was not the case with the TRIPS Agreement.  It sets out basic rules
                                                     
33 IP/C/M/28, para. 194.
34 IP/C/M/27, para. 159.
35 IP/C/M/28, para. 194.
36 IP/C/M/27, para. 182.
37 IP/C/M/27, para. 168.
38 IP/C/W/249, Benefit Accruing Under the TRIPS Agreement, p.3.
39 IP/C/W/194, The TRIPS Agreement is One Part of a Coherent System of Agreements, p.3.
40 IP/C/W/194, The TRIPS Agreement is a Market Access Agreement, p.2.IP/C/W/349
Page 6
for intellectual property protection, is not principally concerned with questions of market access and
provides no commitments in this regard.  Whilst it facilitates market access of goods and services with
intellectual property rights, it is not a market access agreement as such.41  Market access commitments
are encapsulated in the respective GATT and GATS schedules of WTO Members, and have been
negotiated in subsequent GATT/WTO Rounds.42
23. It has been argued that most of the agreements in Annex I of the WTO Agreement generally
do not include commitments to a certain level of market access.43  Like the TRIPS Agreement, they
establish conditions under which international trade is to be conducted.44  Technical barriers to trade
or sanitary or phytosanitary standards can interfere with market access for Members' goods, so too can
varying standards of protection and enforcement of intellectual property rights.  The market access for
which countries negotiate can be devalued, absent some uniform minimum standards on which WTO
Members can rely.45
24. In response, it is argued that the TBT and SPS Agreements not only have the specific
objective of providing predictable market access but their substantive provisions are also related
primarily to predictability of market access through universally accepted standards in respect of
legitimate objectives like safety and health.  In contrast, reasonable expectations in respect of
intellectual property rights would relate to the minimum standards prescribed and not market access.46
25. It is argued that the "benefits" accruing to Members under the TRIPS Agreement are just as
clear as those deriving from the GATT and other agreements that are part of the WTO system. For the
most part, the benefits under the TRIPS Agreement are straightforward and clear, at least to those
familiar with the various forms of intellectual property.47  These would include national treatment and
most-favoured-nation treatment accorded to each Members' nationals;  the level of protectionprovided to each Member's nationals to each form of intellectual property covered by the TRIPS
Agreement;  the extension of the obligations to subject-matter existing on the date of application of
the TRIPS Agreement;  as well as other benefits.
48  It is argued that it is only because intellectual
property rights are granted to persons rather than applied directly to goods that there is a perception
that the TRIPS Agreement somehow differs from other WTO agreements.  The rules the TRIPSAgreement establishes, however, determine the way in which a WTO Member's goods and services
are treated in the territories of other Members and that treatment benefits the Member in the same way
that it benefits under the rules established by other WTO agreements.
49
26. In response, it has been argued that there are very different views as to what is meant by
"benefit" – it is a term that has generated much debate but no common view.  Existing decisions on
the "non-violation" remedy in the GATT context pr ovide a useful framework for the overall analysis,
but are of limited use in defining "benefit" in the context of the TRIPS Agreement.50  The notion of a
benefit in the TRIPS context appears to be quite different from that in the GATT context.51  It should
be acknowledged that the concept of "benefit" is less clear in TRIPS than in an agreement with
specific market access commitments.  It is fundamental to the TRIPS Agreement that denial of
                                                     
41 IP/C/W/249, II Recognition of the Exceptional Character of "Non-Violation" Complaints and the
Specific Nature of the TRIPS Agreement, p.2.
42 IP/C/M/27, para. 159.
43 IP/C/W/194, Appendix, Issues of Concern to Other Members, Uncertainty as to scope, p.7.
44 Ibid, p.7.
45 IP/C/W/194, The TRIPS Agreement is a Market Access Agreement, p.2.
46 IP/C/M/28, para. 194.
47 IP/C/W/194, Appendix, Issues of Concern to Other Members, Undetermined regulatory
authority, p.8.
48 IP/C/W/194, Issues of Concern to Other Members, Uncertainty as to Scope, p.8.
49 IP/C/W/194, Appendix, Issues of Concern to Other Members, Uncertainty as to Scope, p.8.
50 IP/C/W/249, Benefit Accruing Under the TRIPS Agreement, p.3.
51 IP/C/M/29, para. 223.IP/C/W/349
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effective or adequate protection to agreed levels is a distortion or impediment to legitimate
international trade.52 While intellectual property rights might facilitate trade and investment, the
obligations under the TRIPS Agreement cannot be characterized as market access concessions in the
same way as obligations can be characterized under the GATT.
(e) Competitive relationships
27. It has been argued that the concept of "competitive relationship" is a concept used
consistently in GATT panel reports dealing with  non-violation complaints with regard to the
requirement that nullification or impairment of a benefit should have occurred as a result of the
application of a measure.  It should be demonstrated that the competitive position is being upset by
the application of a measure not reasonably anticipated.53  GATT practice suggests that the "benefit"
of an agreement involves the creation of a competitive relationship or competitive opportunities,
usually relating to the competitive relationship between imported and domestically produced goods.Such benefits usually accrue from tariff concessions, but not always.
54
28. It has been argued that, regarding the concept of "competitive relationships", panels dealing
with non-violation cases have so far concentrated on whether, as a result of a conforming measure that
could not have been reasonably anticipated, the competitive relationship between products or services
has changed, nullifying or impairing the benefits accruing under the given agreement to thecomplaining party.  Given the different nature of benefits that could reasonably be expected from the
TRIPS Agreement, it has been doubted whether, and if so, to what extent, the concept of competitive
relationships is applicable in the TRIPS context.  The examination of this question is of special
importance because it could shed light on whether there is a genuine need for a non-violation remedy
under the TRIPS Agreement.
55
29. It has been argued that this concept is very complex in the TRIPS context.56  Under the TRIPS
Agreement, there is not only the competitive relationship between a Member's own nationals and the
nationals of other Members, but also the bargain between the right holder and society as a whole57, to
provide incentives and ensure that society benefits.58
30. It has been argued that, unlike the GATT, the TRIPS Agreement is not about regulating
competitive relationships.  Indeed, it could be argued that the TRIPS Agreement is, in a sense, anti-
competitive in nature where it seeks to reward inventors.  The TRIPS Agreement is about minimum
standards of treatment, not about equal treatment of competitors. The non-violation remedy is
intended to protect reciprocal tariff concessions and is simply inapplicable in the context of the TRIPS
Agreement.59
(f) Private right holders
31. It has been argued that an ordinary market access agreement involves a government granting,
say, tariff concessions for reciprocal tariff concessions.  The concessions are made by one government
to another and, if there were a non-violation complaint, the adverse effect would be borne by the other
                                                     
52 IP/C/W/212, Section C, p.5.
53 This concept is set out in section III.A.5 of the Secretariat note (IP/C/W/124) and in greater detail in
the panel report on Japan – Film (WT/DS44/R).
54 IP/C/W/212, Section C, p.6.  See also  IP/C/M/27, para. 164.
55 IP/C/M/29, para.223, referring to JOB(00)/6166 paras. 13-14.
56 JOB(00)/6166, para. 14.
57 IP/C/M/28, para. 193.
58 IP/C/W/249, Section II, p.2.
59 IP/C/M/23, para. 111.IP/C/W/349
Page 8
government.  However, the TRIPS Agreement is sui generis ;  it is about giving private parties certain
rights.60
32. In response, it has been argued that, although the TRIPS Agreement's obligations are couched
in terms of rights granted to Members' nationals, rather than treatment to which goods or services
originating in Members' territories are subject in th e territory of other Members, this difference is not
as significant as may be perceived.  It is only because intellectual property rights are granted to
persons rather than applied directly to goods that there is a perception that the TRIPS Agreement
somehow differs from other WTO agreements.  The TRIPS Agreement's rules determine the way in
which a WTO Member's goods and services are treated in the territories of other Members and that
treatment benefits the Member in the same way that it benefits under the rules established by other
WTO agreements.61
33. It has been argued that Article XXIII of the GATT and Article 26 of the DSU tie benefits to
contracting parties/Members.  The resultant benefits from TRIPS standards should be those that
accrue to WTO Members and should not be mixed with the interests of individual private right
holders in the exploitation of their intellectual property rights.62
34. It has been argued that Members never thought that, by entering into the WTO Agreement,
they had placed themselves in the position of "insurers" of benefits vis-à-vis the nationals of otherMembers.
63  There is no legal basis for assuming that the negotiators wanted TRIPS to be an
investment agreement.  Even if one talked of reason able expectations, this could relate only to market
access of goods which had obtained intellectual property right protection in the country of export, and
it could not extend to the expectations of reward for investments, if any.64
IV. NATURE OF MEASURES THAT COULD BE AT ISSUE
35. Article XXIII:1(b) of the GATT 1994 provides that a complaint under that provision must
concern the application by another Member "of any measure, whether or not it conflicts with the
provisions of this Agreement".  The views that have been expressed on the question of what type of
measures could give rise to a non-violation complaint in the TRIPS area are summarized in this
section.
36. The concern has been expressed that uncertainty regarding such measures may unduly
constrain governments in the development of policy.  It has been noted that measures and policies
enacted in pursuit of legitimate public policy objectives , such as social, economic development,
health, environmental and cultural measures, may have an impact on intellectual property rights, even
if fully consistent with the obligations of the TRIPS Agreement.  It has been argued that, through the
process of binding dispute settlement, Members could discover that the vague concept of non-
violation applied to TRIPS obligations may take on a much wider scope than was ever intended.65  In
the absence of a common understanding among Members about this remedy, there is a potential
chilling effect on the regulatory process.66  Member governments' responsibility to regulate important
matters should not be undermined by actual or threatened non-violation complaints under the TRIPS
Agreement.67
                                                     
60 IP/C/M/27, para. 182.
61 IP/C/W/194, p.8.
62 IP/C/M/29, para. 223, referring to IP/C/W/212, Section C, p.5.
63 IP/C/M/23, para. 120.
64 IP/C/M/28, para. 194.
65 IP/C/W/249, para. 2.  Similar IP/C/M/30, para. 194.
66 IP/C/M/27, para. 163.
67 IP/C/M/27, para. 176.IP/C/W/349
Page 9
37. In response, it has been argued that the non-violation remedy should not constrain Members
from implementing social, economic development, health, environmental and cultural policies.  If a
proposed measure to address social, economic development, health, environmental or cultural
concerns is likely to have an adverse effect on the intellectual property rights of foreign nationals, the
Member should then consider whether the measure being contemplated could have been foreseenwhen the Uruguay Round negotiations were under way.  These considerations might be of assistance
in selecting an appropriate measure because there is generally a variety of ways in which a social,
economic development, health, environmental and cultural policy might be implemented.
68  T h e
TRIPS Agreement was carefully negotiated to be suff iciently flexible to recognize different legal
regimes and to accommodate Members' needs to achieve different policy objectives.69  For example,
the TRIPS Agreement provides patentees only the right to prevent third parties from taking certain
actions;  it does not guarantee the patentee that it can exploit its rights if other provisions of law,otherwise consistent with the WTO agreements, prohibit that exploitation.
70  It has been questioned
whether measures taken in fulfilment of Articles 7 and 8 could be interpreted as causing non-violation
nullification of benefits.71
38. It has been questioned whether "measure" in this context has a broader meaning than
government instituted measures .  "Measure" has not yet been explicitly defined but GATT cases,
like for example Japan – Film (WT/DS44/R) suggest that WTO panels might interpret this term
broadly, extending it to all aspects of government action.  Laws and regulations appear to be covered
and, in some cases, panels have found administrative guidelines to be measures as well, in particular if
officials applied them as if they were mandatory.72
39. It has been questioned whether "measure" in this context can refer to actions of courts or law
enforcement authorities , particularly in light of the enforcement obligations in the TRIPS
Agreement.73  The potential application of the non-violation remedy in relation to decisions of
domestic courts and tribunals could not only lead to use of the non-violation remedy as a means of
appealing national judicial decisions, but might also have more complex legal implications in relation
to matters such as sovereignty and the division of power and authority, which were issues that wentbeyond the purview of the Council.
74
40. It has been doubted whether the acts of private parties  should be taken into account in
addition to national laws and regulations and possibly other legally enforceable government actions,
in the consideration of the existence of a "measure".  Both Article XXIII:1(b) of GATT 1994 and
Article 26.1 of the DSU speak about government measures, i.e. the application of measures "by
another contracting party" and "by a Member" respectively.  In GATT/WTO experience, it seems to
be essential that the complaining party show the ex istence of a measure attributable to the respondent
party.75  It has been argued that acts of private parties should not be considered when determining
whether a "measure" exists.76
41. It has been questioned whether "measure" could include non-action .77
42. It has been noted that GATT practice indicates that a non-violation complaint has to be based
on a measure that the complaining party could not have reasonably or legitimately expected or
                                                     
68 IP/C/W/194, Issues of Concern to Other Members, Undermining regulatory authority, p.9.
69 IP/C/M/23, para. 114.
70 IP/C/W/194, The TRIPS Agreement is One Part of a Coherent System of Agreements, p.3.
71 IP/C/W249, Section II, p.2.
72 IP/C/W/249, Section II, p.2.
73 IP/C/W/249, Section III(a), pp.2-3.
74 IP/C/M/30, para. 204.
75 See paragraph 32 of the Secretariat background note (IP/C/W/124).
76 JOB(01)/43, p.2.
77 IP/C/W/249, Section III(a), p.3.IP/C/W/349
Page 10
anticipated.  Timing  is key when assessing whether a measure could have been reasonably expected.78
It was suggested that the TRIPS Agreement was concluded on 15 April 1994.79
43. Although there is no agreement on the value of examining case studies, several hypothetical
examples  have been raised during the discussions.
Example A: A Member may decide to ban the ma nufacture, processing, importation and distribution
of materials or products that contain a prohibited substance.  This could affect foreign intellectual
property right holders who may be the main providers of such products to that market.80
Another Member responded to this example:   This example would seem relevant primarily to patents
or trade secrets, with the potential involvement of geographical indications.  The TRIPS Agreement
provides patentees only the right to prevent third parties from taking certain actions;  it does not
guarantee the patentee that it can exploit its rights if other provisions of law, otherwise consistent with
the WTO agreements, prohibit that exploitation. Section 7 of Part II of the TRIPS Agreement requiresthat those in control of undisclosed information be given the right to prevent disclosure of undisclosed
information or its acquisition or use by third parties in a manner contrary to honest commercial use.
Furthermore, the protection provided geographical indications does not ensure that given products
bearing such indications can be sold if other WTO-consistent actions prohibit such sale.  A
non-violation claim based on the hypothetical ban would fail, therefore, because no negotiated benefitexists.
81
Example B:  A Member may decide to apply a heavy taxation on certain goods with intellectual
property rights whose use is deleterious to the environment.82
Another Member responded to this example:   A non-violation claim based on this example would be
unsuccessful because no benefits would be found.83
Example C:  A Member could ban all advertising of cigarettes, including their trademarks, for health
reasons.  This ban, although strictly complying with Article 15.4 of the TRIPS Agreement byallowing trademarks for cigarettes to be registered, could nullify or impair benefits accruing to the
owners of the trademarks.
84
Another Member responded to this example:  Bans on cigarette advertising could easily have been
anticipated at the time of the TRIPS negotiations.  Many countries either already had such bans in
place or were actively discussing them.85
Example D:  Member A may grant a very large increase in the term of copyright protection which
could effectively nullify or impair benefits that Member B was expecting to enjoy at the time of
negotiations and thereafter, because nationals of Member B may have invested in the production of
separate works, say movies or theatre plays, based on or using a work that was expected to be in the
public domain.86
                                                     
78 IP/C/W/124, Secretariat note, para. 56.
79 IP/C/W/249, Section III(b), p.5, referring to IP/C/W/124, Secretariat note, para. 56.
80 IP/C/W/191, para. 10.
81 IP/C/W/194, The TRIPS Agreement is One Part of a Coherent System of Agreements, p.3.
82 IP/C/W/191, para. 10.
83 IP/C/W/194, The TRIPS Agreement is One Part of a Coherent System of Agreements, p.3.
84 IP/C/M/30, para. 200.
85 IP/C/M/30, para. 205.
86 IP/C/W/249, Section II, p.2.IP/C/W/349
Page 11
Example E:  If a Member threatened to withdraw GSP benefits for a developing country Member
unless that Member took certain action, the threat itself could nullify and impair the expected benefit
for the developing country Member of rule-based settlement of disputes.87
44. Other general examples were raised:  laws and regulations which affected the exploitation of
an IPR and which might reduce the value of IP;  administrative or judicial interpretations of theTRIPS Agreement that might be consistent with the express terms of the Agreement but nonetheless
might be argued to undermine the anticipated value of IPRs;  enforcement measures which were under
protective or overprotective of IPRs and therefore reduced the expected value of IPRs.
88
45. Other specific examples were raised:  bans on publication of a book on the grounds of
national security;  laws on libel, pornography and hate literature as applied to copyright works;  a
registration scheme for hand guns that leads to a reduction in exports of patented hand guns;  import
controls on patented products such as pharmaceuticals, electronic goods and machine parts;prohibitions by school authorities on collectible trading cards that lead to reduced sales of
trademarked collectible trading cards from another Member;  and regulations with a negative
influence on market access of trademarked goods or services.
89
46. Reference was made to advanced information technology, which disseminates information
and also subverts intellectual property, and is beyond the control of Member governments,particularly developing country governments.  It was argued that Members should not be responsible
in situations where intellectual property rights are subverted by technology over which they have no
control.
90
V. CAUSALITY
47. It has been noted that Article XXIII:1 of GAT T 1994 requires that a non-violation claim show
that the nullification or impairment is "the result of" the application of the measure.91  I t  h a s  b e e n
suggested that the demonstration of causality between the relevant measure and its effect on the
relevant competitive relationship is another issue to be discussed.92  Article 26.1(a) of the DSU
provides for additional rules, but there may be other implications in the TRIPS context.93
VI. BURDEN OF DEMONSTRATION OF NULLIFICATION AND IMPAIRMENT
48. It has been noted that Article 26.1(a) of the DS U, following GATT practice, stipulates that in
non-violation cases the burden of proof falls on the complaining party and that the complaining party
has to submit a detailed justification substantiating the case.94  The case histories to date suggest that
this justification has to go further than a simple description of the offending measure.  A detailed
substantiation has to be provided of the expectations of the negotiating parties and a clear causal link
demonstrated between the measure at issue and the nullification or impairment.  Generally speaking,
it appears that panels applied a standard of proof based on a balance of probabilities.  It has beensuggested that the exceptional character of the remedy could have implications for the burden of
                                                     
87 IP/C/M/27, para. 182.
88 IP/C/M/27, para. 168.
89 IP/C/W/249, Section III(b), pp.3-4.
90 IP/C/M/23, para. 122.
91 JOB(00)/6166, para. 13.
92 JOB(00)/6166, para. 14.
93 JOB(00)/6166, para. 15.
94 IP/C/M/30, para. 204.IP/C/W/349
Page 12
proof.95  It has been suggested that Members should consider whether a higher standard should be
applied in "non-violation" cases in the TRIPS context.96
VII. REMEDY
49. It has been noted that Article 26.1(b) of the DSU provides that where there is a finding of
non-violation nullification and impairment there is  no obligation to withdraw the measure. The
Appellate Body said in India – Patents :
50. "The ultimate goal [of a non-violation compla int] is not the withdrawal of the measure
concerned, but rather achieving a mutually satisfactory adjustment, usually by means of
compensation."97
All that can be recommended to remedy non-violation nullification and impairment is an adjustmentin the balance of concessions aimed at re-establishing the equilibrium of concessions.
98  In the context
of the GATT, where allegations relate to market access concessions, the quantification ofcompensation does not usually present a significant problem.   In the TRIPS context, however, the
quantification of the level of nullification and impairment would be more difficult.
99  T h e r e  i s
uncertainty as to how this remedy could apply in the area of intellectual property where private rights
are given.  It is easier to withdraw concessions than to take back a private right.100  The question was
asked how one would quantify the level of nullification when a Member raises the burden of proof indomestic intellectual property enforcement procedures so that it is difficult for claimants to
succeed.
101
VIII.  NEED FOR GUIDANCE
51. The concern has been expressed that the Council should not allow a mandate to be
implemented inadequately without recommendations  and decisions.  The Council should avoid a
situation where the scope and modalities of non-violation complaints would be determined case-by-
case in the course of specific dispute settlement processes, with a consequent loss of predictability and
clarity.102  Because of a lack of agreement of the mean ing of "benefit" in the context of intellectual
property rights, a panel would have to come up with a definition almost in a void.  This goes beyond
the desirable mandate of the dispute settlement process.103
52. In response, it has been noted that panels and the Appellate Body are bound by Article 3.2 of
the DSU which states that "Recommendations and rulings of the DSB cannot add to or diminish the
rights and obligations provided in the covered agreements".104  It has been argued that both GATT and
WTO practice under the provisions of Article 26 of the DSU seem to provide ample guidance for
panels and the Appellate Body.  In fact, this is the same guidance that is available under other
                                                     
95 IP/C/W/212, p.8.
96 IP/C/W/249, Section IV, p.5.
97 IP/C/W/249, Section III(c), p.4 citing WT/DS50/AB/R, para. 41.
98 IP/C/W/194, Non -Violation Nullification and Impairment, p.6.
99 IP/C/W/249, Section III(c), p.4.
100 IP/C/M/24, para. 106.
101 IP/C/W/249, Section III(c), p.4.
102 IP/C/W/212, Section I, p.1.  Similar  statements can be found at IP/C/M/27, para. 159; IP/C/M/27,
para. 162; IP/C/M/27, para. 164;  IP/C/M/27, para . 167; IP/C/M/27, para. 168; IP/C/M/27, para. 169;
IP/C/M/27, para. 170; IP/C/M/27, para. 180; IP/C/M/27, para. 182; IP/C/M/30, para. 209; IP/C/M/32, para. 156;
IP/C/M/32, para. 160.
103 IP/C/W/127, Issues of Concern, p.2.  Similar  statements can be found at JOB(00)/6166, para. 9,
referring to IP/C/W/127; IP/C/W/249, Section III (b), p.3;  JOB(01)/43, p.2; IP/C/M/23, para. 118; IP/C/M/24,
para. 105; IP/C/M/27, para. 164.
104 IP/C/W/194, The TRIPS Agreement is One Part of a Coherent System of Agreements, p.3.IP/C/W/349
Page 13
Uruguay Round agreements so that any uncertainty involving TRIPS non-violation complaints should
be no greater than uncertainty regarding those complaints in other areas. 105
53. It has been argued that the application of the remedy within the GATT system to date is an
inadequate guide as to how it would apply in the context of the TRIPS Agreement, which is a
minimum standards agreement rather than a pure market access agreement106, which deals with
private rights107 and which could lag behind the expansi on of new technological property rights.108  It
has been argued that the Appellate Body's report on India – Patents  (WT/DS50/AB/R) shows that the
development of scope and modalities, if any, should  be resolved through direct discussions among the
entire membership and not through interpretation by panels or the Appellate Body.109  I t  h a s  b e e n
argued that after the panel report on Japan – Film (WT/DS44/R) there is some uncertainty regarding
the interpretation of the non-violation remedy which adds to the uncertainty surrounding it and
potentially makes it an extremely broad one.110  It has been argued that the views of the panel in
Korea –Government procurement (WT/DS163/R), that non-violation complaints may extend beyond
the traditional approach represented by pacta sunt servanda  in the context of Article 26 of the DSU,
and which it suggested reflected general GATT/WTO jurisprudence,  enhanced concerns over
permitting non-violation claims in the context of the TRIPS Agreement.111
54. It has been argued that the possible applic ation of non-violation complaints to the TRIPS
Agreement involves a clear distinction between violation and non-violation complaints.112  I n
response, it has been argued that the distincti on between violation and non-violation complaints has
been sufficiently defined by panels under the GATT and that the same principles would be applied
with respect to complaints under the TRIPS Agr eement.  The guidelines given by previous non-
violation cases and by Article 26 of the DSU would be applied by future panels with the samethoroughness and thoughtfulness as ever.
113
55. It has been noted that there are legal concepts  in the TRIPS Agreement that are not normally
found in the GATT, such as legitimate interests of the right holder and third parties and normal
exploitation of rights.  These might provide insights in considering what were "reasonable
expectations".  Articles 13, 17, 24, 26, 30, 31 and 40 presume that benefits are expected from theTRIPS Agreement.  The panel reports on Canada – Pharmaceutical patents (WT/DS114/R) and US –
Section 110(5) (WT/DS160/R) considered some of these articles and they might therefore shed light
on this matter.
114
IX. PROPOSALS FOR ACTION
56. The following general proposals  for action have been made:
- the non-violation remedy should never apply to disputes under the TRIPS
Agreement115;
- there should be no weakening of the rights or obligations of Members by non-
violation complaints under the TRIPS Agreement116;
                                                     
105 IP/C/M/32, para. 159.
106 IP/C/M/27, para. 163.
107 IP/C/M/23, para. 112.
108 IP/C/M/23, para. 120.
109 WT/DS50/AB/R, para. 42.
110 IP/C/W/127, Issues of Concern, p.2.
111 IP/C/M/27, para. 165.
112 IP/C/M/27, para. 166.
113 IP/C/M/29, para. 229.
114 JOB(00)/6166, para. 11.
115 IP/C/M/23, para. 111.IP/C/W/349
Page 14
- the development perspective needs to be taken into consideration117;
- the principal aim of the inclusion or introduction of this sort of provision is not to
sanction WTO Members but to give predictability in order to prevent Members from
nullifying or impairing the interests of other Members118;
- the scope of the non-violation remedy should be carefully and narrowly defined119;
and
- the application of non-violation complaints should not undermine sovereign rights to
legislate or regulate for various valid legal, economic and development reasons;
should not change the balance of the TRIPS Agreement,120 nor should it result in new
responsibilities that had not been negotiated121, and should not result in impediments
towards the use of legitimate measures under the  TRIPS Agreement.122
57. The concern has been expressed that application of the non-violation remedy under the TRIPS
Agreement would be unpredictable without a common view on the essential elements of the
remedy  in relation to intellectual property.123  The view has been expressed that the concept is not
germane to intellectual property and that, until such time as the TRIPS Council has developed the
required clarifications, non-violation and situation complaints should not be admitted in the TRIPS
area. 124
58. In response, it has been argued that the provisions of Article 26 of the DSU and past panel
decisions under the GATT as well as discussions in the WTO already provide sufficient guidance for
panels and the Appellate Body in dealing with any such cases as might arise.125
59. It has been suggested that a Council recommendation could observe, as a starting-point, that
to succeed on a claim of non-violation nullificati on and impairment under the TRIPS Agreement, a
Member should establish that:
- a benefit accrues to it as a result of the terms of TRIPS, and
- for a complaint under GATT Article XXIII:1(b), the other Member has implemented
a measure that could not have been foreseen during the TRIPS negotiations, and thismeasure has nullified or impaired that benefit, and
- for a complaint under GATT Article XXIII:1(c), an analogous situation has arisen.
 126
                                                                                                                                                                    
116 IP/C/M/27, para. 176.
117 IP/C/M/23, para. 119.
118 IP/C/M/22, para. 140.
119 IP/C/M/29, para. 223.
120 IP/C/M/30, para. 194.
121 IP/C/M/23, para. 119.  See IP/C/M/23, para. 122.
122 IP/C/M/30, para. 201.
123 IP/C/M/27, para. 163.  Similar statements can be found at: IP/C/M/21, para. 123; IP/C/M/22,
para. 136; IP/C/M/23, para. 109; IP/C/M/23, para. 110; IP/C/M/23, para. 122; IP/C/M/24, para. 105; IP/C/M/24,
para. 106; IP/C/M/24, para. 108; IP/C/W/249, section III(c); IP/C/M/28, para. 192; IP/C/M/32, para. 155,
referring to IP/C/W/249, section III(c); IP/C/M/32, pa ra. 160; IP/C/M/30, paras. 196 and 203; IP/C/W/141,
para. 3.
124 IP/C/M/33, para. 134.
125 IP/C/M/30, para. 205.
126 IP/C/W/212, p.8, drawing points from IP/C/W/194, p.9.IP/C/W/349
Page 15
60. It has also been suggested that a Council recommendation could observe that the benefit
involved concerns the interests of a Member, and not of an individual right holder, and accordingly
entails some form of systemic interest or systematic nullification and impairment of a benefit rather
than the specific application of a measure to an in dividual intellectual property right.  It could also
observe that claims as to expected benefits under the TRIPS Agreement should be assessed withreference to the preamble, objectives (Article 7) and principles (Article 8) of the TRIPS Agreement,
as well as specific provisions as to substantive intellectual property law and performance standards as
to enforcement (including the obligation not to impede legitimate trade) and administration of
intellectual property rights (Parts III and IV).
127
61. It has been suggested that a Council recommendation could list indicative factors to be
weighed in assessing the extent of nullification and impairment of benefits, such as the number of
intellectual property rights affected by the measure or situation under dispute, and the scale of thetrade in goods or services related to those rights.
128
62. It has been argued that it is important to ensure that a complaint lodged under a particular
WTO agreement should lead to a dispute settlement result that did  not undermine coherence among
WTO agreements .129  It has been suggested that the interpretation of the legal protection conferred
on right holders under the TRIPS Agreement should not be incompatible with the treatment conferredto products under the GATT, or in respect of services and service suppliers under the GATS.
130
63. In response, it has been argued that a non-violation complaint lodged under the TRIPS
Agreement cannot impair the consistent application of another WTO agreement.  Article 3.2 of the
DSU expressly provides that "Recommendations and ru lings of the DSB cannot add to or diminish the
rights and obligations provided in the covered agreements".  Article 3.5 of the DSU also provides that"All solutions to matters formally raised under th e consultation and dispute settlement provisions of
the covered agreements, including arbitration awards, shall be consistent with those agreements and
shall not nullify or impair benefits accruing to any Member under those agreements, nor impede the
attainment of any objective of those agreements."  Given that the WTO Agreement is the result of a
single undertaking, it is highly unlikely that even absent this express language in the DSU a panelwould determine that something a Member has agreed to under one part of this single undertaking
would nullify or impair benefits accruing under another part of it.  Moreover, given that an essential
element of a successful non-violation complaint is that the action could not have been foreseen at the
time the benefit was negotiated, it would be obvious that if any WTO agreement provided for an
action, that action was foreseen at the time of negotiations and the non-violation complaint would
fail.
131
64. It has been suggested that a Council recommendation could observe that a non-violation
complaint addressed to a measure that was demonstrated legitimately to serve the objectives of other
covered agreements could not be sustained, especially if the complaint would impair the consistent
application of the covered agreements.132
65. More specific suggestions have been made which would place measures falling within certain
exceptions beyond the scope of the non-violation remedy under the TRIPS Agreement.  It has beenquestioned whether Members would be in favour of leaving open the option for countries to file a
non-violation complaint under the TRIPS Agreement, if the measure were found to be in full
                                                     
127 IP/C/W/212.  This paper suggested other elements for a recommendation which are reproduced in
other parts of this summary note.
128 IP/C/W/212, p.9.
129 IP/C/M/27, para. 159.
130 JOB(00)/6166, para. 18.
131 IP/C/W/194, The TRIPS Agreement is One Part of a Coherent System of Agreements, p.3. See also
IP/C/M/30, para. 205.
132 IP/C/W/212, p.9, referring to IP/C/W/194, p.3.IP/C/W/349
Page 16
compliance with multilateral provisions under the GATT and its annexed agreements or the GATS.  It
has been suggested that, as a minimum, in order to maintain consistency among the WTO agreements,
measures that fall within the general exceptions found within the GATT or GATS should not be
subject to dispute settlement under the TRIPS Agreement.133
66. It has been suggested that a Council recommendation could observe that non-violation TRIPS
complaints should not be sustainable inasmuch as they relate to limitations or exceptions to
intellectual property rights that are determined to be consistent with provisions such as Articles 13,
17, 24, 26.2, 30 and 40 and corresponding provisions in the Berne Convention, or against measures
against anti-competitive abuse of IPRs consistent with Article 40.2.134  Other provisions were also
suggested, such as Articles 21, 27.2, 27.3 and 31.135
67. It has been noted that Article 26.2 of the DSU effectively provides that reports on "situation"
complaints can still only be adopted by positive consensus .136 However, with respect to "non-
violation" complaints, in the absence of specific wo rding to the contrary in Article 26.1 of the DSU, it
would appear that "non-violation" decisions would be  adopted by "negative" consensus.  However, it
has been questioned whether, in the context of the TRIPS Agreement, "non-violation" complaints and
"situation" complaints should not share the same process for adoption of decisions, namely "positive"
consensus (i.e. all Members would need to agree to a report before it was adopted).137  In response, it
has been argued that this suggestion might be going too far as it raises a systemic issue and seems to
call for an amendment of the DSU.138
X. SITUATION COMPLAINTS
68. Article XXIII:1(c) of GATT 1994 refers to complaints based on "the existence of any other
situation", so-called "situation" complaints.
69. It has been noted that, under Article 26.2 of the DSU, the usual practice of adopting panel
reports by negative consensus does not apply to situation complaints.  Rather, through reference to the
1989 GATT decision on "improvements to the GATT dispute settlement rules and procedures"
(L/6489), the adoption of panel reports on situation complaints requires "positive" consensus (i.e. all
Members need to agree to a report before it is adopted).139
70. It has been noted that the rationale for "situation" complaints was to leave open the possibility
for Members "to seek a modification of the undertakings it has given if, by the action of others,
conditions are created in which it can no longer carry out those undertakings" (E/CONF.2/C.6/W.19,
p.1).  It has been argued that, from a policy perspective, "non-violation" complaints manifest many of
the same issues as do "situation" complaints.  Members' abilities to introduce new and perhaps vital
social, economic development, health, environmental and cultural measures should not be construed
as denying ambiguously defined benefits under the TRIPS Agreement.140
71. It has been noted that the GATS does not allo w situation complaints under that Agreement.141
                                                     
133 IP/C/W/191, para. 11.
134 IP/C/W/212, Section IV(A) Scope, p.9.
135 IP/C/M/29, para. 225.
136 Through its reference to the GATT decision of 12 April 1989 on "Improvements to the GATT
dispute settlement rules and procedures" (L/6489).
137 IP/C/W/249, Adoption of TRIPS Non-Violation Decisions through "Positive" rather than
"Negative" Consensus, p.5.  See IP/C/M/30, para. 197.
138 IP/C/M/30, para. 200.
139 IP/C/M/30, para. 197.
140 IP/C/W/249, Section V, p.5.
141 Article XXIII of GATS, referred to in JOB(01)/43, p.3.IP/C/W/349
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XI. IMPEDIMENT TO ATTAINMENT OF AN OBJECTIVE
72. The chapeau of Article XXIII:1 of GATT 1994 refers not only to the possibility of complaints
alleging that "any benefit … is being nullified or impaired" but also to the possibility of complaints
alleging "impediment to attainment of an objective" as the result of the matters set out in
paragraphs (a) ("violation") or (b) ("non-violation") or (c) ("situation"), respectively.
73. It has been suggested that the Council should look at how the impediment of the objectives of
the TRIPS Agreement can be assessed and how its extent can be determined.142
74. It has been noted that the GATS does not allow complaints based on impediment to
attainment of an objective of that agreement.143
                                                     
142 JOB(01)/43, p.3.
143 Article XXIII GATS, referred to in JOB(01)/43, p.3.IP/C/W/349
Page 18
ANNEX
TRIPS COUNCIL DOCUMENTATION ON NON-VIOLATION
AND SITUATION COMPLAINTS
Submitted by Document
referenceTitle Date
Secretariat   IP/C/W/124 Non-Violation Complaints and the TRIPS
Agreement  28 January 1999
 Canada   IP/C/W/127 Non-Violation Nullification or Impairment
under the Agreement on Trade-Related Aspects
of IPRs (TRIPS) - (also annexed to
IP/C/W/249)  10 February 1999
Cuba, the Dominican 
Republic, Egypt, 
Indonesia, Malaysia and 
Pakistan  IP/C/W/141 Non-Violation Nullification or Impairment
under the TRIPS Agreement – Proposal  29 April 1999
United States   JOB(99)/4439 Non-Viol ation Nullification or Impairment
under the TRIPS Agreement – Non-Paper from
the US - Non-paper from the United States
(also appended to IP/C/W/194  26 July 1999
Canada, the Czech 
Republic., EC, Hungary and Turkey  IP/C/W/191 Non-Violation Complaints under the TRIPS
Agreement – Suggested Issues for Examinationof Scope and Modalities under Art. 64.3 of
TRIPS (also annexed to IP/C/W/249)  22 June 2000
United States   IP/C/W/194 Scope a nd Modalities of Non-Violation
Complaints Under the TRIPS Agreement  17 July 2000
Australia   IP/C/W/212 Non-Violation Complaints   27 Sept. 2000
Korea   JOB(00)/6166 Non-Paper.  Non-violation complaints under
the TRIPS Agreement  9 Oct. 2000
Hungary   JOB(01)/43 Non-paper by Hungary reproducing its
statement at meeting of 27 November 2000 -
Non-violation and situation complaints
under the TRIPS Agreement  28 March 2001
Canada   IP/C/W/249 Further Consideration of Non-Violation
Nullification or Impairment under the TRIPS
Agreement  29 March 2001
Chairperson   JOB(01)/70 Non-violation and situation complaints.
Communication from the Chair - headings
which might be used in organizing furtherdiscussions  11 May 2001IP/C/W/349
Page 19
MINUTES OF MEETINGS OF THE COUNCIL FOR TRIPS AT WHICH THE
ISSUE OF NON-VIOLATION AND SITUATION COMPLAINTS
HAS BEEN DISCUSSED
IP/C/M/21 Meeting held on 1-2 December 1998
IP/C/M/22 Meeting held on 17 February 1999
IP/C/M/23 Meeting held on 21-22 April 1999
IP/C/M/24 Meeting held on 7-8 July 1999
IP/C/M/25 Meeting held on 20-21 October 1999IP/C/M/26 Meeting held on 21 March 2000
IP/C/M/27 Meeting held on 26-29 June 2000
IP/C/M/28 Meeting held on 21-22 September 2000
IP/C/M/29 Meeting held on 27-30 November and 6 December 2000
IP/C/M/30 Meeting held on 2-5 April 2001IP/C/M/32 Meeting held on 18-22 June 2001
IP/C/M/33 Meeting held on 19-20 September 2001
IP/C/M/34 Meeting held on 27-28 November 2001
IP/C/M/35 Meeting held on 5-7 March 2002
__________