WORLD TRADE  
ORGANIZATION  IP/C/W/349/Rev.1 
24 November 2004 
 (04-5108) 
Council for Trade-Related Aspects 
of Intellectual Property Rights  
 
 
 
NON-VIOLATION AND SITUATION COMPLAINTS 
 
Summary Note by the Secretariat  
 
Revision  
 
 
  
 
 
 
I.
 INTRODUCTION ................................................................................................................... ...1 
II. EXCEPTIONAL CHARACTER OF THE NON-VIOLATION REMEDY ..............................3  
III. PURPOSE OF THE NON-VIOLATION REMEDY .................................................................3  
IV. NATURE OF BENEFITS ACCRUING UNDER THE TRIPS AGREEMENT........................7  
V. NATURE OF MEASURES THAT COULD BE AT ISSUE ...................................................13  
VI. CAUSALITY...................................................................................................................... ......16  
VII. BURDEN OF DEMONSTRATION OF NULLIFICATION AND IMPAIRMENT ...............16  
VIII. REMEDY......................................................................................................................... .........16  
IX. NEED FOR GUIDANCE .........................................................................................................17  
X. PROPOSALS FOR ACTION...................................................................................................18  
XI. SITUATION COMPLAINTS...................................................................................................22  
XII. IMPEDIMENT TO ATTAINMENT OF AN OBJECTIVE.....................................................23  
 
 I. INTRODUCTION 
1. At its meeting on 21 September 2004
1 the Council requested the Secretariat to update the 
Summary Note of the points raised in the s ubstantive discussion of this agenda item so far 
(IP/C/W/349), which it had prepared in response to a request from the Council in March 2002.  The present revision of that note responds to this request  by including the points that have been raised 
since the circulation of the original note.  Being a summary, this note is not exhaustive and is prepared 
for the assistance of Members in continuing the substa ntive discussion of this agenda item.  Reference 
should be made to the complete record of the discussion as contained in the papers submitted by 
delegations and minutes of m eetings listed in the Annex for a complete picture. 
                                                     
 
1 See the minutes of that meeting, document IP/C/M/45, para. 98. This document has been prepa red under the Secretariat's own 
responsibility and without prejudice to the positions of Members 
and to their righ ts and obligations under the WTOIP/C/W/349/Rev.1 
Page 2  
 
 2. Article 64.3 of the TRIPS Agreement requi red 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 progra mme at its first meeting in March 1995, but the 
Council did not have an initial exchange of view s on it until its meeting in December 1998.  The 
Council discussed the subject up until its meeting in J une 2003.  In this contex t, various delegations 
submitted papers and, at the Council's request, the Secretariat prepared a factual background note, 
which focused primarily on experience with non-violation complaints under the GATT/WTO (IP/C/W/124).  In 2001, the Chair circulated some he adings which could be used to organize further 
discussions, which were based on the subheadings in part of the Secretariat note (JOB(01)/70).  In 
2002, the Chair circulated an annotated agenda with  questions on which large parts of the following 
discussions in the Council were based (JOB(02)/66).  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 subpa ragraphs 1(b) and 1(c) of Article XXIII of 
GATT 1994 and make recommendations to the Fifth Session of the Ministerial Conference.  It is agreed that, in the meantime, Members w ill not initiate such complaints under the TRIPS 
Agreement."
 2 
4. In the decision on the Doha Work Programme adopted by the General Council on 
1 August 2004, the issue was addressed as follows: 
"Other elements of the Work Programme :  the General Council reaffirms the high priority 
Ministers at Doha gave to those elements of the Work Programme which do not involve negotiations.  Noting that a number of these issu es are of particular interest to developing-
country Members, the Council emphasizes its commitment to fulfil the mandates given by 
Ministers in all these areas.  To this end, th e General Council and other relevant bodies shall 
report in line with their Doha mandates to the Sixth Session of the Ministerial Conference.  
The moratoria covered by paragraph 11. 1 of the Doha Ministerial Decision on 
Implementation-related Issues and Concerns a nd paragraph 34 of the Doha Ministerial 
Declaration are extended up to the Sixth Ministerial Conference."
 3 
 
5.  At its meeting of 21 September 2004, the Counc il for TRIPS considered what action it should 
take pursuant to this Decision with regard to non- violation complaints.  The Council agreed that the 
item on non-violation and situation comp laints be put on the agenda of its next meeting, and that the 
Secretariat be requested to prep are the present updated Summary Note.4 
6. This paper begins with a summary of comment s on the exceptional character and purpose of 
the non-violation remedy and on systemic consider ations regarding non-vi olation complaints under 
the TRIPS Agreement. It then addresses the five  headings circulated by the Chairperson in 
JOB(01)/70:  nature of benefits;  measures;  causa lity;  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 brie f sections on situation complaints and complaints 
alleging impediment to attainment of an objective of the Agreement. 
                                                      
2 WT/MIN(01)/17, para. 11.1. 
3 WT/L/579, para. 1(h). 
4 IP/C/M/45, para. 98. IP/C/W/349/Rev.1 
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II. EXCEPTIONAL CHARACTER OF THE NON-VIOLATION REMEDY 
7. The view has been expressed that non-viola tion nullification and impairment (the "non-
violation remedy") has an exceptional character.5  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" .6  The view has been expressed that non-violation complaints could only succeed 
under the TRIPS Agreement in a very limited number of cases.7  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 TRIPS context and, if so, on what conditions and 
within what limits.8  It has been suggested that the excepti onal character of the remedy could have a 
bearing on the scope of non-violation compla ints entertained under the TRIPS Agreement.9 
III. PURPOSE OF THE NON-VIOLATION REMEDY 
8. The issue of the purpose of the non-violation remedy and whether it is necessary or desirable 
in the TRIPS context  has been discussed.  In this context,  delegations have expressed views on the 
systemic implications  of the application of the non-violation remedy in the TRIPS area.  
9. One issue that has been disc ussed in this connection is whether the non-violation remedy is 
necessary for the security and predictability of benefits  that should flow from the TRIPS 
Agreement, including whether it can be applicable  to benefits flowing from rules of general 
application or is only a pplicable to benefits deriving from tariff and other market access concessions.  
In this context, points have been made about the implications of the application of the non-
violation remedy for the balance of rights and obligations under the TRIPS Agreement and 
whether it would enhance or reduce certainty. 
10. On the one hand, it has been noted that experience with the non-violation remedy under 
GATT has usually concerned the benef its of negotiated tariff concessions.10  It has been noted that the 
scope of the non-violation remedy has been re duced under Article XXIII:3 of GATS which limits 
non-violation complaints under that Agreement to  benefits accruing from specific commitments 
undertaken by Members.11  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 Member can bring a 'non-violation' complaint 
when the negotiated balance of concessions betw een Members is upset by the application of a 
measure, whether or not this measure is inco nsistent with the provisions of the covered 
agreement.  The ultimate goal is not the wit hdrawal of the measure concerned, but rather 
achieving a mutually satisfactory adjustment, usually by means of compensation." 12 
                                                      
5 IP/C/M/28, para.192.  See IP/C/W/249, Sec. II, page 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.  
6 IP/C/W/212, sec. IV, page 7, citing Panel Report on Japan - Film , WT/DS44/R, para. 10.37.  See also 
IP/C/W/127, Issues of Concern , page 2 and IP/C/W/385, para. 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. 
7 IP/C/W/194, page 4 . 
8 IP/C/M/24, para. 105. 
9 IP/C/W/212, page 8. 
10 IP/C/W/124, paras. 27-28 and IP/C/W/385, paras. 13-14; IP/C/M/40, para. 152. 
11 IP/C/M/32, para. 156; IP/C/W/385, para. 15. 
12 WT/DS50/AB/R, para. 41, cited at IP/C/W/194, page 6. IP/C/W/349/Rev.1 
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It has been argued that, even with regard to negotiated concessions, the need for non-violation 
complaints to protect tariff concessions has been  largely removed since the establishment of the 
WTO, by the adoption of disciplines on subsidies and non-tariff measures and by the inclusion in the agreements in Annex I of the Marrakesh Agreemen t of substantial flexibility to address borderline 
cases without recourse to non-violation complaints.
13  For the above reasons, the non-violation 
remedy was simply inapplicable in the context of the TRIPS Agreement14, which, unlike other WTO 
agreements, is a sui generis  agreement which is not designed to protect market access or the balance 
of tariff concessions but rather to establish minimu m standards of intellect ual property protection, 
which, if abused, may even undermine markets access (see, e.g., Article 8).15  It was difficult to see 
the analogy between tariff concessions or specifi c services commitments, on the one hand, and the 
multilateral recognition of the minimum rights of na tionals to be provided for by a WTO Member on 
the basis of the TRIPS Agreement, on the other hand.16  Moreover, the minimum standards have 
sufficient guarantees at the national le vel under the TRIPS enforcement provisions17, because right 
holders can have recourse to domestic courts in  respect of benefits derived from protection.18  
11. On the other hand, it has been noted that thr ee GATT panel reports had also considered non-
violation claims based on general obligations rath er than specific tariff concessions and found that 
GATT Article XXIII:1(b) is not limited to tariff benefits.19  It has been argued that applying the non-
violation remedy under TRIPS woul d provide security and predictability and help ensure that the 
TRIPS Agreement's flexibility is not misused in or der 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 Member s that might be dissatisfied by particular 
provisions of the TRIPS Agreement and which wished to avoid obligations.   
12. In response, it has been argued that non-viola tion and situation complaints are unnecessary to 
protect any balance of rights and obligations inhere nt in the TRIPS Agreement, as these are reflected 
in the Agreement's principal obligations and flex ibilities, and the Agreement explicitly states that 
WTO Members are not obliged to implement more extensive protection (Article 1).20  The application 
of non-violation complaints under the TRIPS Ag reement would undermine regulatory authority and 
infringe sovereign rights as it might constrain Memb ers' ability to introduce new and perhaps vital 
social, economic development, health, environm ental and cultural measures and affect existing 
policies in these areas.21  It has been said that, as TRIPS, unlike GATT and GATS, did not protect 
measures designed to achieve importa nt national policy goals, such as health and the environment, 
through a general exception, such measures would be placed at a further disadvantage if open to 
challenge through non-violation complaints.22  The introduction of the non-violation remedy under the 
TRIPS Agreement, particularly without a proper understanding of the issue, might cause the TRIPS 
Agreement to undergo significant change23 and unsettle its delicate balance of rights and obligations24 
                                                      
13 IP/C/W/385, para. 15. 
14 IP/C/M/23, para. 111; IP/C/M/37/Add.1, para. 278; IP/C/M/40, para. 160. 
15 IP/C/W/385; para. 31. 
16 IP/C/M/22, para. 142. 
17 IP/C/M/23, para. 126; IP/C/W/385, para. 33-36 ; IP/C/M/37/Add.1, para. 267. 
18 IP/C/M/21, para. 120. 
19 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/W/212 at page 6 and 
IP/C/W/124, Annex 4. 
20 IPC/C/W/385; para. 38; IP/C/M/37/Add.1, para. 276; IP/C/M/39, para. 167; IP/C/M/40, para. 158. 
21 IP/C/W/385, paras. 24-25 citing IP/C/W/141, para. 4; IP/C/M/37/Add.1, para. 268 and 273; 
IP/C/M/37/Add.1, para. 278; IP/C/M/37/Add.1, para. 283; IP/C/M/38, para. 277; IP/C/M/39, para. 179. 
22 IP/C/W/385, para. 26. 
23 IP/C/M/23, para. 111. IP/C/W/349/Rev.1 
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 as there was a danger that the private rights protect ed under the TRIPS Agreement would thereby be 
elevated over the interests of users and public policy concerns.25  As the obligations under the TRIPS 
Agreement, unlike tariff bindings, could not be revi sed between individual parties, the introduction of 
non-violation complaints would operate as a lega l principle creating unknown new benefits and 
corresponding responsibilities.26  The introduction of the non-violation remedy could also undermine 
the flexibilities inherent in the TRIPS Agreement27 by creating possibilities for unilateral pressure not 
to employ compulsory licences and other measures sanctioned by the Declaration on the TRIPS Agreement and Public Health.
28  The application of non-violation complaints under the TRIPS 
Agreement would introduce legal uncertainty29 in the WTO system more generally and would 
therefore increase public concerns over the impact of the TRIPS Agreement on public policy such as 
health, biodiversity and technology transfer and c onsequently affect the predictability and security 
which the multilateral trading system s ought to provide for all WTO Members.30  It was said that the 
potential for bringing non-violation complaints ha d already been cited in a number of bilateral 
consultations about intellectual property rights.31 
13. Another issue raised has been the  relation of the non-violation remedy to international 
law.  The question of whether the requirement of good fa ith application of international obligations in 
accordance with the normal principles of public international law is sufficient to guarantee benefits 
under the TRIPS Agreement or a non-violation re medy is also necessary has been discussed.   
14. It has been argued that, as the "good faith" pe rformance and interpretation principle of 
international law already required a bona fide, r easonable application of the TRIPS Agreement, the 
introduction of the non-violation remedy was therefore unnecessary to protect the balance of rights 
and obligations in the TRIPS Agreement.32  In this context, it has been noted that according to 
Article 3.2 of the Dispute Settlement Understa nding ("DSU") the provisions of the agreements 
covered by the DSU are to be clarified "in accordan ce with the customary rules of interpretation of 
public international law" which also compri se the concept of "good faith" performance and 
interpretation as mentioned in Articles 26 and 31 of the Vienna Convention. It has been recalled that 
the Appellate Body said in its report on United States – Shrimp  that: 
"[The principle of good faith], at once a general principle of law and a general principle of 
international law, controls the exercise of ri ghts by States.  One application of this general 
principle, the application widely known as the doctrine of abus de droit , prohibits the abusive 
exercise of a State's rights and enjoins that wh enever the assertion of a right 'impinges on the 
field covered by [a] treaty obligation, it must be exercised bona fide, that is to say, 
reasonably'.  An abusive exercise by a Member of its own treaty right thus results in a breach 
of the treaty rights of the other Members and, as  well, a violation of the treaty obligation of 
the Member so acting."33 
 
                                                                                                                                                                     
24 IP/C/M/24, para. 105.  
25 IP/C/W/385, para. 21; IP/C/M/37/Add.1, para. 268. 
26 IP/C/W/385, para.22; IP/C/M/40, para. 156. 
27 IP/C/M/37/Add.1, para. 268. 
28 IP/C/W/385, para 27-28. 
29 IP/C/M/37/Add.1, para. 275; IP/C/M/37/Add.1, para. 276; IP/C/M/37/Add.1, para. 278; 
IP/C/M/37/Add.1, para. 280; IP/C/M/37/Add.1, para. 281;  IP/C/M/37/Add.1, para. 282; IP/C/M/37/Add.1, para. 
283; IP/C/M/38, para. 270; IP/C/M/38, para. 271; IP/C/M/38, para. 272; IP/C/M/38, para. 273; IP/C/M/39, para. 
175; ; IP/C/M/39, para. 178; IP/C/M/40, para. 152; IP/C/M/40, para. 154; IP/C/M/40, para. 162. 
30 IP/C/W/385, para. 54. 
31 IP/C/W/385, para. 53. 
32 IP/C/W/385, para. 32 ; IP/C/M/37/Add.1, para. 267; IP/C/M/38, para. 272; IP/C/M/39, para. 167; 
IP/C/M/39, para. 179. 
33 WT/DS58/AB/R, para. 158, cited at IP/C/W/385, para. 42. IP/C/W/349/Rev.1 
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 15. It has been further argued that international la w has not evolved in such a way that states or 
Members can be penalized for acts or omissions fo r 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-violatio n complaints goes further than this.  It seeks to 
render a Member liable for situations in which it has not violated any agreement and even for 
situations over which it has no control.
34  The International Law Commission has been working on the 
issue of international liability of states for acts not contrary to law, in particular those resulting in 
transboundary damage, but even it has not yet reached any conclusions.35  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 viol ation of a primary obliga tion – 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.36 
16. In discussing the  impact of the application of the non-violation remedy in the TRIPS area 
on coherence in the WTO system,  the following arguments have been made. 
17. It has been argued that the non-violation remedy  is an important element of the WTO dispute 
settlement system37 and that there is a need to maintain coherence among the different WTO 
agreements.38  It has been argued that there is no subs tantial difference between GATT, GATS and the 
TRIPS Agreement and that, as the TRIPS Agreement is one of the pillars of the WTO system, the 
principle of non-violation clearly applies also to it.39  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 be nefits in another, and should provide Members 
with the same security and predictability that is  available in relation to other WTO agreements.40  
There is also an exchange of rights and obligations within the Agreement itself in the form of certain 
limitations and exceptions in relation to  various forms of intellectual property.41  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.42   
18. In response, it has been argued that merely b ecause the non-violation remedy might be proper 
under the GATT does not make it proper under the TRIPS Agreement43 and that the TRIPS 
environment is different from th e GATT and the GATS environments.44  It has been argued that 
introducing non-violation complaints under the TRIPS Agreement might introduce incoherence 
among WTO agreements45 as otherwise WTO-consistent measure s such as taxes and advertising 
                                                      
34 IP/C/M/23, para. 120. 
35 IP/C/M/23, para. 126.  Since that time, the International Law Commission at its 54th session on 
17 April 2002 issued the 5th report on unilateral acts of States (A/CN.4/525/Add. 1) available at 
http://www.un.org/law/ilc/sessions/54/54docs.htm.  
36 IP/C/M/27, para. 182. 
37 IP/C/M/21, para. 124; IP/C/M/40, para. 170. 
38 IP/C/M/27, para. 165; IP/C/M/37/Add.1, para. 286. 
39 IP/C/M/27, para. 177.; IP/C/M/40, para. 170. 
40 IP/C/M/23, para. 114; ; IP/C/M/38, para. 274; IP/C/M/40, para. 170. 
41 IP/C/W/194, Appendix, under the subheading 'Issues of Concerns to Other Members, Uncertainty as 
to Scope', page 8. 
42 IP/C/W/194, Appendix, under the subheading 'Legal Basis for the Position of the US Regarding 
Expiration of the "Moratorium" on Non-Violation Cases', page 7. 
43 IP/C/M/22, para. 146; IP/C/W/385, para. 31. 
44 IP/C/M/22, para. 144; IP/C/M/39, para. 180. 
45 IP/C/M/37/Add.1, para. 268; IP/C/M/39, para. 175; IP/C/M/40, para. 151. IP/C/W/349/Rev.1 
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 requirements could then be cha llenged under the TRIPS Agreement46 which would amount to 
establishing a new cause of action under the TRIPS Agreement.47  Non-violation and situation 
complaints under TRIPS were unnecessary to protec t market access commitments embodied in the 
GATT or GATS, or any other notion of a balance of concessions struck in the Uruguay Round, as 
these are adequately protected by those ag reements and other Annex 1 agreements.48   
19. In response thereto, it has been argued that a non-violation complaint lodged under the TRIPS 
Agreement cannot impair the consis tent application of another WTO agreement.  Article 3.2 of the 
DSU expressly provides that "[r]ecommendations and rulings of the DSB cannot add to or diminish 
the rights and obligations provided in the covered ag reements".  Article 3.5 of the DSU also provides 
that "[a]ll solutions to matters formally raised under the consultation and di spute settlement provisions 
of the covered agreements, including arbitration awar ds, 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 panel would 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 obvi ous 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.
49 
20. It has been argued that the introduction of non- violation complaints in TRIPS would further 
imbalance the proper distribution of responsib ilities between WTO Members and panels and the 
Appellate Body.50  Under GATT, the negotiators had re garded the concept of non-violation 
nullification and impairment as a benchmark gui ding bilateral consulta tions, negotiations and 
multilateral decision-making and did not envisage the a pplication of the concept in binding third-party 
adjudication procedure. It was applied in a way in  which each contracting party had the possibility to 
block the adoption of a finding of nullification and impairment.  Under the WTO Agreement, 
however, the decisions determining the relevant bene fits for non-violation complaints would be made 
independently by the Appellate Body, whose d ecision would have to be  unconditionally accepted. 
There was concern that the uncertainty regarding th e application of non-violation complaints could 
foster "unintended interpretation"51 and that there could be potentiall y expansive interpretations of the 
WTO obligations by panel and Appe llate Body decisions which could not easily be reversed by WTO 
Members.52 
IV. NATURE OF BENEFITS ACCRUING UNDER THE TRIPS AGREEMENT 
21. Much of the substantive discussion of this ite m has concerned essential elements of a non-
violation claim.  Certain issues of procedure and re medy have also been raised.  Paragraph 1(b) of 
Article XXIII of GATT 1994 refers to the nullifica tion 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 pr ovisions of this Agreement.  Article 26.1 of the 
                                                      
46 IP/C/W/385, para. 18; IP/C/M/37/Add.1, para. 268. 
47 IP/C/W/385, para. 19. 
48 IP/C/W/385, Executive Summary and para. 15. 
49 IP/C/W/194, unded the subheading 'The TRIPS Agreement is One Part of a Coherent System of 
Agreements', page.3.  See also  IP/C/M/30, para. 205.  
50 IP/C/W/385, para. 51; IP/C/M/37/Add.1, para. 270. 
51 IP/C/W/385, para. 51 citing IP/C/W/191, para. 13. 
52 IP/C/W/385, para. 51.  A similar statem ent is found at IP/C/M/39, para. 178. IP/C/W/349/Rev.1 
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 DSU requires the complaining party in such cases to present a detailed justifica tion 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 
22. It has been argued that an assessment of be nefits 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 ri ghts;  the balance of rights and obligations;  the 
promotion of technological innovation and transfer and dissemination of technology;  the mutual 
advantage of producers and users of technological knowledge;  social and economic welfare;  and 
ensuring that intellectual property right en forcement does not impede legitimate trade.
53  
23. It has been argued that the Council needs to take into account the role played by the 
objectives and principles of the Agreement in Article s 7 and 8.  The TRIPS Agreement is intended to 
achieve a balance between the protection of intell ectual property rights and other social and economic 
policies and it is important that Members have th e necessary flexibility to ad just intellectual property 
rights to maintain the desired balance.54  It has been argued that non-violation complaints are not 
necessary to protect the balance between right holde rs and users as these do not concern the balance 
of obligations between Members.55 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.56 
24. 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 
transfer and dissemination of technology and th e reasonable expectations of transfer and 
dissemination through the promotion of technological innovation.57  It has been argued that the 
inherent tension in the TRIPS Agreement, between  promoting international trade and technological 
innovation on the one hand and a pursuit of public inte rests with the protection of private intellectual 
property rights on the other, would be heightened by the introduction of non-violation and situation 
complaints, as both sides might seem to have grounds for complaints.58 
25. It has been argued that any benefits accrui ng under the TRIPS Agreement were adequately 
described in the text of the Agreement and that Members had not agreed to any benefits beyond the 
boundaries of the text.59  As Article 1 explicitly provided that "Members shall give effect to the 
provisions of this Agreement" and that "Members ma y, but shall not be obliged to, implement in their 
law more extensive protection than is required by this Agreement", there were no legitimate 
expectations of benefits beyond the effec tive protection of intellectual property rights.60  It has been 
argued that these benefits would be best achieved by  a good faith performance of the obligations of 
the TRIPS Agreement.61  It has been argued that, in respect  of an agreement which contained rules 
                                                      
53 IP/C/W/212, Section B, page 4. 
54 IP/C/M/28, para. 193. 
55 IP/C/W/385, para. 32; IP/C/M/37/Add.1, para. 267. 
56 Job(00)/6166, paras.17-18. 
57 IP/C/M/28, para. 194. 
58 IP/C/M/37/Add.1, para. 281. 
59 IP/C/W/385, paras. 38-39; IP/C/M/37/Add.1, para. 267, 269; IP/C/M/37/Add.1, para. 281; 
IP/C/M/38, para. 277; ; IP/C/M/40, para. 159;  IP/C/M/40, para. 166. 
60 IP/C/M/37/Add.1, para. 276; IP/C/M/39, para. 167; IP/C/M/40, para. 158. 
61 IP/C/W/385, paras. 38-39. IP/C/W/349/Rev.1 
Page 9 
 
 
 and disciplines such as the TRIPS Agreement, there could be no nullification if there was no violation 
or infringement.62 
(b) Intellectual property protection 
26. The TRIPS Agreement provides minimum standa rds with regard to the acquisition or 
exploitation of intellectual property rights and on their scope, as well as procedures and measures to 
enforce those rights, notably by en abling effective action against unau thorized use of those rights by 
third parties.  It has been suggested that compla ints could be considered as falling within a possible 
ambit of a non-violation case under the TRIPS Agreemen t 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 con cessions under the GATT or the GATS.  Cases where 
limitations on the availability, maintenance and enfo rcement of an intellectual property right are the 
specific object of a complaint might fall within this category. When (a restriction on) market access is 
the principal object of a complaint, by contrast, th is should be filed exclus ively under the relevant 
procedures provided in the GATT and GATS.63 The reasonable expectations under Part II onwards 
were only of the minimum standards prescribed and not market access.64 
27. It has been noted that Article 63.1 of the TRI PS Agreement defines the "subject-matter of this 
Agreement" as "the availability, scope, acquisiti on, enforcement and prevention of the abuse of 
intellectual property rights".65  It has been argued that, even if the TRIPS Agreement is a market 
access agreement, it has its own distinctive characte r and, therefore, additional considerations are 
more or less needed to analyse the application of non-violation under it.66 
(c) Exploitation of rights 
28. It has been argued that the "benefit" conferre d under the TRIPS Agreement is the ability to 
"acquire, maintain and enforce" intellectual propert y rights.  This "benefit" does not automatically 
concern the exploitation of the subject-matter of t hose rights.  There are also different forms of non-
economic benefits to consider.67  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.68 
(d) Market access 
29. 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.69  Its preamble begins with the words 
"Members, desiring to reduce distortions and impediments to international trade …".  
                                                      
62 IP/C/M/37/Add.1, para 280. 
63 IP/C/M/27, para. 159; see also IP/C/W/385, para. 35 which argues that applying non-violation 
complaints to the TRIPS Agreement was ther efore unnecessary to address these cases. 
64 IP/C/M/28, para. 194; IP/C/W/385, para. 33-36 ; IP/C/M/37/Add.1, para. 267; IP/C/M/39, para. 175. 
65 IP/C/M/27, para. 182. 
66 IP/C/M/27, para. 168. 
67 IP/C/W/249, under the subheading 'Benefit A ccruing Under the TRIPS Agreement', page 3. 
68 IP/C/W/194, under the subheading 'The TRIPS Agreement is One Part of a Coherent System of 
Agreements', page 3. 
69 IP/C/W/194, under the subheading 'The TRIPS Ag reement is a Market Access Agreement', page 2. IP/C/W/349/Rev.1 
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 30. In response, it has been argued that the r esults of WTO market access negotiations were 
recorded in national schedules of concessions annexe d to the Uruguay Round Protocol that formed an 
integral part of the Final Act.  This was not th e case with the TRIPS Agreement which set out basic 
rules for intellectual property protection, was not principally concerned with questions of market 
access and provided 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
70 as it concerned 
rights, not products.71  Market access commitments are encapsu lated in the respective GATT and 
GATS schedules of WTO Members, and have been  negotiated in subsequent GATT/WTO Rounds.72  
31. It has been argued that most of the agreemen ts in Annex I of the WTO Agreement generally 
do not include commitments to a certain level of market access.73  Like the TRIPS Agreement, they 
establish conditions under which intern ational trade is to be conducted.74  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 in tellectual property rights.  The market access for 
which countries negotiate can be devalued, absen t some uniform minimum standards on which WTO 
Members can rely.75 
32. In response, it has been 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 thr ough universally accepted standards in respect of 
legitimate objectives like safety and health.  In c ontrast, reasonable expectations in respect of 
intellectual property rights would relate to the mi nimum standards prescribed and not market access.76  
In this context it was also argued that, while ot her WTO agreements tended to increase competition, 
the effect of the provisions in the TRIPS Agreem ent was to reduce competiti on to provide incentives 
for innovation.77 
33. 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 agreem ents 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 fo rms of intellectual property.78  These would include national treatment and 
MFN treatment accorded to each Members' nationals ;  the level of protection provided to each 
Member's nationals to each form of intellectua l 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.79  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 ag reements.  The rules the TRIPS Agreement 
establishes, however, determine the way in which a WTO Member's goods and services are treated in 
                                                      
70 IP/C/W/249, under the subheading 'II Recognition of  the Exceptional Character of "Non-Violation" 
Complaints and the Specific Nature of the TRI PS Agreement', page 2; IP/C/W/385, para. 31. 
71 IP/CM/37/Add.1, para 280. 
72 IP/C/M/27, para. 159. 
73 IP/C/W/194, Appendix, under the subheading 'Issues of Concern to Other Members, Uncertainty as 
to scope', page 7. 
74 Ibid, page 7. 
75 IP/C/W/194, under the subheading 'The TRIPS Ag reement is a Market Access Agreement', page 2. 
76 IP/C/M/28, para. 194; IP/C/W/385, para. 33-36 ; IP/C/M/37/Add.1, para. 267. 
77 IP/C/W/385, para. 33. 
78 IP/C/W/194, Appendix, under the subheading 'Issues of Concern to Other Members, Undetermined 
regulatory authority', page 8. 
79 IP/C/W/194, under the subheading 'Issues of Concern to Other Members, Uncertainty as to Scope', 
page 8. IP/C/W/349/Rev.1 
Page 11 
 
 
 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.80 
34. 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 provide  a useful framework for the overall analysis, but 
are of limited use in defining "benefit" in the context of the TRIPS Agreement.81  The notion of a 
benefit in the TRIPS context appears to be qu ite different from that in the GATT context.82  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 fundame ntal to the TRIPS Agreement that denial of 
effective or adequate protection to agreed leve ls is a distortion or impediment to legitimate 
international trade.83 While intellectual property rights might facilitate trade and investment, the 
obligations under the TRIPS Agre ement cannot be characterized as market access concessions in the 
same way as obligations can be characterized under the GATT. 
(e) Competitive relationships 
35. It has been argued that the concept of "c ompetitive relationship" is a concept used 
consistently in GATT panel repor ts dealing with non-violation co mplaints 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 demonstrat ed that the competitive position is being upset by 
the application of a measure not reasonably anticipated.84  GATT practice suggests that the "benefit" 
of an agreement involves the creation of a co mpetitive relationship or competitive opportunities, 
usually relating to the competitiv e relationship between imported a nd domestically produced goods.  
Such benefits usually accrue from tariff concessions, but not always.85 
36. 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 co mpetitive relationship betw een products or services 
has changed, nullifying or impairing the bene fits accruing under the given agreement to the 
complaining party.  Given the different nature of benefits that could reasona bly be expected from the 
TRIPS Agreement, it has been doubted whether, and if  so, to what extent, th e 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 th ere is a genuine need for a non-violation remedy 
under the TRIPS Agreement.86 
37. It has been argued that this concept is very complex in the TRIPS context.87  Under the TRIPS 
Agreement, there is not only the competitive relati onship between a Member's own nationals and the 
nationals of other Members, but also the bargai n between the right holder and society as a whole88, to 
provide incentives and ensure that society benefits.89 
                                                      
80 IP/C/W/194, Appendix, under the subheading 'Issues of Concern to Other Members, Uncertainty as 
to Scope', page 8. 
81 IP/C/W/249, under the subheading 'Benefit A ccruing Under the TRIPS Agreement', page 3. 
82 IP/C/M/29, para. 223. 
83 IP/C/W/212, Section C, page5. 
84 This concept is set out in secti on 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). 
85 IP/C/W/212, Section C, page 6.  See also  IP/C/M/27, para. 164. 
86 IP/C/M/29, para.223, referring to JOB(00)/6166 paras. 13-14. 
87 JOB(00)/6166, para. 14. 
88 IP/C/M/28, para. 193. 
89 IP/C/W/249, Section II, page 2. IP/C/W/349/Rev.1 
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 38. It has been argued that, unlike the GATT, th e TRIPS Agreement is not about regulating 
competitive relationships.  Indeed, it could be argue d that the TRIPS Agreement is, in a sense, anti-
competitive in nature where it seeks to reward inventors.
90  The TRIPS Agreement is about minimum 
standards of treatment, not about equal treatment of competitors. The non-violation remedy is 
intended to protect reciprocal tari ff concessions and is simply inapplicable in the context of the TRIPS 
Agreement.91 
(f) Private right holders 
39. It has been argued that an ordinary market  access agreement involves a government granting, 
say, tariff concessions for reciprocal tariff concessi ons.  The concessions are made by one government 
to another and, if there were a non- violation complaint, the adverse e ffect would be borne by the other 
government.  However, the TRIPS Agreement is sui generis ;  it is about giving private parties certain 
rights.92 
40. In response, it has been argued that, although th e 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 the 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 th at it benefits under the rules established by other 
WTO agreements.
93 
41. It has been argued that Article XXIII of the GA TT and Article 26 of the DSU tie benefits to 
contracting parties/Members.  The resultant bene fits from TRIPS standards should be those that 
accrue to WTO Members and should not be mixed w ith the interests of individual private right 
holders in the exploitation of their intellectual property rights.94  While the former were traditionally 
safeguarded by multilateral dispute settlement proce dures, the latter were enforced through domestic 
courts.95  Applying non-violation complaints could tec hnically mean that private rights could extend 
beyond what had been negotiated.96 
42. It has been argued that Members never thought  that, by entering into the WTO Agreement, 
they had placed themselves in the position of "insur ers" of benefits vis-à-vis the nationals of other 
Members.97  There is no legal basis for assuming that the negotiators wanted TRIPS to be an 
investment agreement.  Even if one talked of reas onable expectations, this c ould 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.98 
                                                      
90 IP/C/W/385, para. 41. 
91 IP/C/M/23, para. 111; IP/C/W/385, para. 41. 
92 IP/C/M/27, para. 182; IP/C/W/385, para. 31; IP/C/M/37/Add.1, para. 267. 
93 IP/C/W/194, page 8. 
94 IP/C/M/29, para. 223, referring to IP/C/W/212, Section C, page 5; IP/C/W/385, para. 40; 
IP/C/M/37/Add.1, para. 269. 
95 IP/C/W/385, para. 40. 
96 IP/C/M/37/Add.1, para. 281. 
97 IP/C/M/23, para. 120. 
98 IP/C/M/28, para. 194. IP/C/W/349/Rev.1 
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 V. NATURE OF MEASURES THAT COULD BE AT ISSUE 
43. Article XXIII:1(b) of the GATT 1994 provides that a complaint under that provision must 
concern the application by another Member "of a ny measure, whether or not it conflicts with the 
provisions of this Agreement".  The views that ha ve been expressed on the question of what type of 
measures could give rise to a non-violation compla int in the TRIPS area are summarized in this 
section.   
44. The concern has been expressed that uncerta inty 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 TRI PS 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.
99  In 
the absence of a common understanding among Members about this remedy, there is a potential chilling effect on the regulatory process.
100  Member governments' responsib ility to regulate important 
matters should not be undermined by actual or th reatened non-violation complaints under the TRIPS 
Agreement.101 
45. In response, it has been argued that the non-vi olation remedy should not constrain Members 
from implementing social, economic development, h ealth, environmental and cultural policies.  If a 
proposed measure to address social, economic deve lopment, health, environmental or cultural 
concerns is likely to have an adverse effect on th e intellectual property rights of foreign nationals, the 
Member should then consider whether the measure  being contemplated could have been foreseen 
when 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, environmenta l and cultural policy might be implemented.102  T h e  
TRIPS Agreement was carefully negotiated to be su fficiently flexible to recognize different legal 
regimes and to accommodate Members' need s to achieve different policy objectives.103  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.104  It has been questioned 
whether measures taken in fulfilment of Articles 7 and 8 could be interpreted as causing non-violation 
nullification of benefits.105 
46. It has been argued that if non-violation complaints under the TRIPS Agreement could be 
based on all measures that were likely to have an adverse effect on intellectual property rights of 
foreign nationals and were not foreseen during the Uruguay Round, then any government-instituted 
measure including actions of law-enforcement author ities and courts could be challenged.  There was 
concern that this would lead to the use of the non-violation remedy as a means of appealing national 
legal decisions and upsetting th e balance between State bodies.106 
                                                      
99 IP/C/W/249, para. 2.  Similar IP/C/M/30, para. 194. 
100 IP/C/M/27, para. 163, IP/C/W/385, para. 25. 
101 IP/C/M/27, para. 176. 
102 IP/C/W/194, under the subheading 'Issues of Concern to Other Members, Undermining regulatory 
authority', page 9.   
103 IP/C/M/23, para. 114. 
104 IP/C/W/194, under the subheading 'The TRIPS Agreement is One Part of a Coherent System of 
Agreements', page 3. 
105 IP/C/W/249, Section II, page 2. 
106 IP/C/W/385, para. 45. IP/C/W/349/Rev.1 
Page 14  
 
 47. 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 acti on.  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.
107 
48. It has been questioned whether "measu re" in this context can refer to actions of courts or law 
enforcement authorities , particularly in light of the enforcement obligations in the TRIPS 
Agreement.108  The potential application of the non-violation remedy in relation to decisions of 
domestic courts and tribuna ls 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 went 
beyond the purview of the Council.109 
49. It has been doubted whether the acts of private parties  should be taken into account in 
addition to national laws and regul ations and possibly other legally  enforceable government actions, 
in the consideration of the existence of a "mea sure".  Both Article XXIII:1(b) of GATT 1994 and 
Article 26.1 of the DSU speak about government me asures, i.e. the application of measures "by 
another contracting party" and "by a Member" resp ectively.  In GATT/WTO experience, it seems to 
be essential that the complaining party show the exis tence of a measure attri butable to the respondent 
party.110  It has been argued that acts of private par ties should not be considered when determining 
whether a "measure" exists.111  
50. It has been questioned whether "measure" could include non-action .112  It has been argued 
that in a scenario where domestic laws and regulati ons were in apparent conformity with the TRIPS 
Agreement, a systematic refusal to apply these do mestic provisions could c onstitute nullification and 
impairment of benefits under the TRIPS Agreement.113 
51. It has been argued that defining "measure", ev en narrowly, would not address the concerns 
regarding the scope of application of the non-viol ation remedy, as these do not merely arise from a 
lack of clarity about which "measures" could be  challenged, but more fundamentally from legal 
uncertainty inherent in the con cept of non-violation and its appli cation through the TRIPS Agreement 
to any domestic measure.114 
52. It has been noted that GATT practice indicates th at a non-violation complaint has to be based 
on a measure that the complaining party could not have reasonably or leg itimately expected or 
anticipated.  Timing  is key when assessing whether a measure could have been reasonably 
expected.115  It was suggested that the TRIPS Agreement was concluded on 15 April 1994.116  
53. Although there is no agreement on the value of examining case studies, several hypothetical 
examples  have been raised during the discussions. 
                                                      
107 IP/C/W/249, Section II, page 2. 
108 IP/C/W/249, Section III(a), pages 2-3. 
109 IP/C/M/30, para. 204. 
110 See paragraph 32 of the Secretariat background note (IP/C/W/124). 
111 JOB(01)/43, page 2. 
112 IP/C/W/249, Section III(a), page 3. 
113 IP/C/M/40, para. 167. 
114 IP/C/W/385, para. 46; IP/C/M/37/Add.1, para. 270. 
115 IP/C/W/124, Secretariat note, para. 56. 
116 IP/C/W/249, Section III(b), page 5, referring  to IP/C/W/124, Secretariat note, para. 56. IP/C/W/349/Rev.1 
Page 15 
 
 
 Example A : A Member may decide to ban the manufacture, processing, importation and distribution 
of materials or products that contain a prohibited s ubstance.  This could affect foreign intellectual 
property right holders who may be the main pr oviders of such products to that market.117   
Another Member responded to this example:   This example would seem re levant primarily to patents 
or trade secrets, with the poten tial 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, ot herwise consistent with 
the WTO agreements, prohibit that exploitation. Section 7 of Part II of the TRIPS Agreement requires that those in control of undisclosed information be given the right to prevent disclosure of undisclosed 
information or its acquisition or use by third parti es in a manner contrary to honest commercial use.  
Furthermore, the protection provided for 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 wo uld fail, therefore, because no negotiated benefit 
exists.
118 
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.119 
Another Member responded to this example:   A non-violation claim base d on this example would be 
unsuccessful because no benefits would be found.120 
Example C :  A Member could ban all advertising of ciga rettes, including their trademarks, for health 
reasons.  This ban, although strictly complyi ng with Article 15.4 of the TRIPS Agreement by 
allowing trademarks for cigarettes to be registered , could nullify or impair benefits accruing to the 
owners of the trademarks.121 
Another Member responded to this example:  Bans on cigarette advertis ing 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.122 
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.123 
Example E :  If a Member threatened to withdraw G SP 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.124 
54. Other general examples were suggested:  laws a nd regulations which affected the exploitation 
of an IPR and which might reduce the value of IP;  administrative or judicial interpretations of the 
                                                      
117 IP/C/W/191, para. 10. 
118 IP/C/W/194, under the subheading 'The TRIPS Agreement is One Part of a Coherent System of 
Agreements', page 3. 
119 IP/C/W/191, para. 10. 
120 IP/C/W/194, under the subheading 'The TRIPS Agreement is One Part of a Coherent System of 
Agreements', page 3. 
121 IP/C/M/30, para. 200. 
122 IP/C/M/30, para. 205. 
123 IP/C/W/249, Section II, page 2. 
124 IP/C/M/27, para. 182. IP/C/W/349/Rev.1 
Page 16  
 
 TRIPS 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 ther efore reduced the expected value of IPRs.
125 
55. Other specific examples were mentioned:  bans on publication of a book on the grounds of 
national security;  laws on libel, pornography and ha te literature as applied to copyright works;  a 
registration scheme for hand guns that leads to a re duction in exports of patented hand guns;  import 
controls on patented products such as pharma ceuticals, electronic goods and machine parts;  
prohibitions by school authorities on collectible trading cards that lead to reduced sales of 
trademarked collectible trading cards from anot her Member;  and regulations with a negative 
influence on market access of trademarked goods or services.126 
56. Reference was made to advanced informati on technology, which disseminates information 
and may also subvert intellectual property, and is beyond the control of Member governments, 
particularly developing country governments.  It has been argued that Members should not be 
responsible in situations where intellectual prope rty rights are subverted by technology over which 
they have no control.127 
VI. CAUSALITY 
57. It has been noted that Article XXIII:1 of GATT 1994 requires that a non-violation claim show 
that the nullification or impairment is "the  result of" the application of the measure.128  It has been 
suggested that the demonstration of causality betw een the relevant measure and its effect on the 
relevant competitive relationship is another issue to be discussed.129  Article 26.1(a) of the DSU 
provides for additional rules, but there may be  other implications in the TRIPS context.130 
VII. BURDEN OF DEMONSTRATION OF NULLIFICATION AND IMPAIRMENT 
58. It has been noted that Article 26.1(a) of the DSU, following GATT practice, stipulates that in 
non-violation cases the burden of proof falls on the co mplaining party and that the complaining party 
has to submit a detailed justif ication substantiating the case.131  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 expectati ons 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 been 
suggested that the exceptional character of the re medy could have implica tions for the burden of 
proof.132  It has been suggested that Members should consider whether a higher standard should be 
applied in "non-violation" cases in the TRIPS context.133  
VIII.  REMEDY 
59. It has been noted that Article 26.1(b) of th e 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 :  
                                                      
125 IP/C/M/27, para. 168. 
126 IP/C/W/249, Section III(b), pages 3-4. 
127 IP/C/M/23, para. 122. 
128 JOB(00)/6166, para. 13. 
129 JOB(00)/6166, para. 14. 
130 JOB(00)/6166, para. 15. 
131 IP/C/M/30, para. 204. 
132 IP/C/W/212, page 8. 
133 IP/C/W/249, Section IV, page 5. IP/C/W/349/Rev.1 
Page 17 
 
 
 "The ultimate goal [of a non-violation complain t] is not the withdrawal of the measure 
concerned, but rather achieving a mutually satisfactory adjustment, usually by means of 
compensation."134   
 60. All that can be recommended to remedy non-vi olation nullification and impairment is an 
adjustment in the balance of concessions aimed at  re-establishing the equilibrium of concessions.
135  
In the context of the GATT, where allegations rela te to market access concessions, the quantification 
of compensation 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.136  There was 
already very little GATT practice on which to base a judgement of what was or should be "usual" in 
relation to non-violation claims and this was esp ecially true in the case of the TRIPS Agreement.137  
There is uncertainty as to how this remedy coul d apply in the area of intellectual property where 
private rights are given.  It is easier to withdr aw concessions than to take back a private right.138  The 
question was asked how one would quantify the le vel of nullification when a Member raises the 
burden of proof in domestic intellectual property enforcement procedures so that it is difficult for 
claimants to succeed.139  It was pointed out that Article 26 of the DSU stated that "compensation may 
be part of a mutually satisfactory adjustment" and that ways and means suggested by arbitration were 
not binding.140  
IX. NEED FOR GUIDANCE 
61. The concern has been expressed that the Council should not allow a mandate to be 
implemented inadequately wit hout recommendations and decisions .  The Council should avoid a 
situation where the scope and modalities of non-vi olation complaints would be determined case-by-
case in the course of specific dispute settlement proc esses, with a consequent loss of predictability and 
clarity.141  Because of a lack of agreement of the meani ng 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.142 
62. In response, it has been noted that panels a nd the Appellate Body are bound by Article 3.2 of 
the DSU which states that "[r]ecommendations and ru lings of the DSB cannot add to or diminish the 
rights and obligations provided in the covered agreements".143  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.144  In fact, this is the same guidance that is available under other 
                                                      
134 IP/C/W/249, Section III(c), page  4 citing WT/DS50/AB/R, para. 41. 
135 IP/C/W/194, under the subheading 'Non -Vio lation Nullification and Impairment', page 6. 
136 IP/C/W/249, Section III(c), page 4. 
137 IP/C/W/385, para. 49 
138 IP/C/M/24, para. 106. 
139 IP/C/W/249, Section III(c), page 4. 
140 IP/C/W/385, para. 49 
141 IP/C/W/212, Section I, page 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. 
142 IP/C/W/127, Issues of Concern, page 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), page 3; JOB(01)/43, page 2; IP/C/M/23, para. 118; 
IP/C/M/24, para. 105; IP/C/M/27, para. 164. 
143 IP/C/W/194, under the subheading 'The TRIPS Agreement is One Part of a Coherent System of 
Agreements', page 3. 
144 IP/C/M/32, para. 159; IP/C/M/39, para. 183. IP/C/W/349/Rev.1 
Page 18  
 
 Uruguay Round agreements so that any uncertainty  involving TRIPS non-violation complaints should 
be no greater than uncertainty regard ing those complaints in other areas.
 145 
63. 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 th e context of the TRIPS Agreement, which is a 
minimum standards agreement rather th an a pure market access agreement146, which deals with 
private rights147 and which could lag behind the expansi on of new technological property rights.148  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, shou ld be resolved through direct discussions among the 
entire membership and not through interpre tation by panels or the Appellate Body149, which, in the 
absence of sufficient guidelines for application, would be facing a normative void which could not 
appropriately be filled by a judicial fiat.150  It has been argued that after the panel report on Japan – 
Film (WT/DS44/R) there is some uncertainty regardi ng the interpretation of the non-violation remedy 
which adds to the uncertainty surrounding it a nd potentially makes it an extremely broad one.151  It 
has been argued that the views of the panel in Korea –Government procurement (WT/DS163/R), that 
non-violation complaints may extend beyond th e 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-v iolation claims in the context of 
the TRIPS Agreement.152  
64. It has been argued that the possible application of non-violation complaints to the TRIPS 
Agreement involves a clear distinction betw een violation and non-violation complaints.153  In 
response, it has been argued that the distinction between violation and non- violation complaints has 
been sufficiently defined by panels under the GAT T and that the same principles would be applied 
with respect to complaints under the TRIPS Ag reement.  The guidelines given by previous non-
violation cases and by Article 26 of the DSU would be applied by future panels with the same 
thoroughness and thoughtfulness as ever.154 
65. It has been noted that there ar e legal concepts in the TRIPS Agreement that are not normally 
found in the GATT, such as legiti mate 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 the 
TRIPS 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.
155 
X. PROPOSALS FOR ACTION 
66. With regard to action to be taken by  the Council in this matter the following general remarks 
have been made: 
                                                      
145 IP/C/M/32, para. 159. 
146 IP/C/M/27, para. 163; IP/C/W/385, para. 33-36 ; IP/C/M/37/Add.1, para. 267. 
147 IP/C/M/23, para. 112. 
148 IP/C/M/23, para. 120. 
149 WT/DS50/AB/R, para. 42. 
150 IP/C/W/385, para. 48. 
151 IP/C/W/127, under the subheading 'Issues of Concern', page 2. 
152 IP/C/M/27, para. 165. 
153 IP/C/M/27, para. 166. 
154 IP/C/M/29, para. 229. 
155 JOB(00)/6166, para. 11. IP/C/W/349/Rev.1 
Page 19 
 
 
 - there should be no weakening of the rights or obligations of Members by non-
violation complaints under the TRIPS Agreement156; 
- the development perspective needed  to be taken into consideration157; 
- the principal aim of the inclusion or introduction of this sort of provision was not to 
sanction WTO Members but to give predicta bility in order to prevent Members from 
nullifying or impairing the interests of other Members158; 
- the scope of the non-violation remedy should be carefully and narrowly defined159; 
and 
- the application of non-violation complain ts should not undermine sovereign rights to 
legislate or regulate for various valid le gal, economic and de velopment reasons;  
should not change the balance of the TRIPS Agreement,160 nor should it result in new 
responsibilities that had not been negotiated161, and should not result in impediments 
towards the use of legitimate measures under the  TRIPS Agreement.162 
67. The concern has been expressed that applicati on 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.163  The view has been expressed that the concept was not 
germane to intellectual property and that, until su ch time as the TRIPS Council has developed the 
required clarifications, non-violati on and situation complaints should not be admitted in the TRIPS 
area. 164 
68. In response, it has been argued that the provi sions of Article 26 of the DSU and past panel 
decisions under the GATT as well as discussions in the WTO already provided sufficient guidance for 
panels and the Appellate Body in dea ling with any such cases as might arise.165  
69. It has been suggested that a Council recommendation could observe, as a starting-point, that 
to succeed on a claim of non-violation nullification 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 for eseen during the TRIPS negotiations, and this 
measure has nullified or impaired that benefit;  and 
 
                                                     
 
156 IP/C/M/27, para. 176. 
157 IP/C/M/23, para. 119. 
158 IP/C/M/22, para. 140. 
159 IP/C/M/29, para. 223. 
160 IP/C/M/30, para. 194. 
161 IP/C/M/23, para. 119.  See IP/C/M/23, para. 122. 
162 IP/C/M/30, para. 201. 
163 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, para. 160; IP/C/M/30, paras. 196 and 203; IP/C/W/141, 
para. 3; IP/C/M/37/Add.1, para. 270; IP/C/M/38, para. 277; ; IP/C/M/39, para. 186; IP/C/M/40, para. 168. 
164 IP/C/M/33, para. 134. 
165 IP/C/M/30, para. 205. IP/C/W/349/Rev.1 
Page 20  
 
  - for a complaint under GATT Article XXIII:1(c), an analogous situation has arisen.
 166 
 70. It has also been suggested th at 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 systema tic nullification and impairment of a benefit rather 
than the specific application of a measure to an individual intellectual property right.  It could also 
observe that claims as to expected benefits under the TRIPS Agreement should be assessed with 
reference to the Preamble, objectives (Article 7) a nd principles (Article 8) of the TRIPS Agreement, 
as well as specific provisions as to substantive inte llectual 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).
167 
71. 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 the 
trade in goods or services related to those rights.168 
72. It has been argued that it is important to en sure that a complaint lodged under a particular 
WTO agreement should lead to a dispute settlement result that did  not undermine coherence among 
WTO agreements .169  It has been suggested that the interp retation of the legal protection conferred 
on right holders under the TRIPS Agreement should not be incompatible with the treatment conferred 
to products under the GATT, or in respect of services and service suppliers under the GATS.170 
73. It has been suggested that a Council recommendation could observe that a non-violation 
complaint addressed to a measure that was demonstrat ed legitimately to serve the objectives of other 
covered agreements could not be sustained, especial ly if the complaint would impair the consistent 
application of the covered agreements.171 
74. More specific suggestions have been made wh ich would place measures falling within certain 
exceptions beyond the scope of the non-violation remedy under the TRIPS Agreement.  It has been 
questioned 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 
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.172 
75. It has been suggested that a Council recomme ndation 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 
                                                      
166 IP/C/W/212, page 8, drawing points from IP/C/W/194, page 9. 
167 IP/C/W/212.  This paper suggested other elements for a recommendation which are reproduced in 
other parts of this summary note. IP/C/M/37/Add.1, para. 285. 
168 IP/C/W/212, page 9. 
169 IP/C/M/27, para. 159. 
170 JOB(00)/6166, para. 18. 
171 IP/C/W/212, page 9, referring to IP/C/W/194, page 3. 
172 IP/C/W/191, para. 11.  IP/C/W/349/Rev.1 
Page 21 
 
 
 against anti-competitive abuse of IPRs  consistent with Article 40.2.173  Other provisions were also 
suggested, such as Articles 21, 27.2, 27.3 and 31.174 
76. 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 .175 However, with respect to "non-
violation" complaints, in the absence of specific word ing 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 th e 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).176  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.177 
77. In an informal meeting of the TRIPS Council, held on 23 May 2003178, the Chair noted that 
with regard to concrete proposals for action by the Council, with specific reference to the Cancún 
Ministerial Conference, four main options would be logically possible from a purely conceptual point of view, namely that: 
- the non-violation remedy be determined  inapplicable to the TRIPS Agreement
179; 
- the non-violation remedy should apply without any conditions180; 
- non-violation and situation complaints  be made available under the TRIPS 
Agreement subject to some specific a dditional guidance on their scope and 
modalities; 
- the moratorium be extended so as to allo w the Council more time to consider the 
scope and modalities of non-violation and situation complaints in the area of 
TRIPS.181 
                                                      
173 IP/C/W/212, Section IV(A) Scope, page 9. 
174 IP/C/M/29, para. 225.  
175 Through its reference to the GATT decision of 12 April 1989 on "Improvements to the GATT 
dispute settlement rules and procedures" (L/6489). 
176 IP/C/W/249, under the subheading Adoption of TR IPS Non-Violation Decision through "Positive" 
rather than "Negative" Consensus, page 5. See IP/C/M/30, para. 197. 
177 IP/C/M/30, para. 200. 
178 This was reported to the formal meeting of the TRIPS Council on 4-5 June 2003; See IP/C/M/40, 
paras. 143-144. 
179 IP/C/M/23, para. 111;  IP/C/W/385, para. 56;  IP/C/M/37/Add.1, para. 270;  IP/C/M/37/Add.1, 
para. 274;  IP/C/M/37/Add.1, para. 278;  IP/C/M/37/Add.1, para. 280;  IP/C/M/37/Add.1, para. 281;  IP/C/M/37/Add.1, para. 284; IP/C/M/38, para. 270; IP/C/M/38, para. 271; IP/C/M/38, para. 272; IP/C/M/38, 
para. 273; IP/C/M/38, para. 275; IP/C/M/38, para. 276; IP/C/M/38, para. 277; IP/C/M/38, para. 278; IP/C/M/38, 
para. 279; IP/C/M/39, para. 167; IP/C/M/39, para. 176; IP/C/M/39, para. 177; IP/C/M/39, para. 184; IP/C/M/39, 
para. 185; IP/C/M/39, para. 187; IP/C/M/40, para. 145; IP/C/M/40, para. 150; IP/C/M/40, para. 152; IP/C/M/40, 
para. 153; IP/C/M/40, para. 156; IP/C/M/40, para. 158; IP/C/M/40, para. 159; IP/C/M/40, para. 160; IP/C/M/40, 
para. 161; IP/C/M/40, para. 163; IP/C/M/40, para. 165; IP/C/M/40, para. 174.   
180 IP/C/W/194, Appendix, under subheading 'Legal Basis for the Position of the US Regarding 
Expiration of the Moratorium" on Non-Violation Cases, page 7; IP/C/M/37/Add.1, para. 286; IP/C/M/38; 
para. 274; IP/C/M/39, para. 183; IP/C/M/40, paras 167-168; IP/C/M/40, paras. 170-173. 
181 IP/C/M/40, para. 155; IP/C/M/40, para. 157; IP/C/M/40, para. 162; IP/C/M/40, para. 163; 
IP/C/M/40, para. 164; IP/C/M/40, para. 168; IP/C/M/40, para. 169. IP/C/W/349/Rev.1 
Page 22  
 
 78. These options were discussed at that informal meeting and at the Council's meeting on 4-
5 June 2003.  The footnotes to these options in th e previous paragraph indicate the support given to 
each of them at that Council meeting as well as on earlier occasions.  
79. In the light of these reactions and subse quent consultations, the following text was 
incorporated into the Second Revision of the Draft Cancún Ministerial Text.
182 
"We take note of the work done by the Counc il for Trade-Related Aspects of Intellectual 
Property Rights pursuant to paragraph 11.1 of  the Doha Decision on Implementation-Related 
Issues and Concerns and direct it to continue its examination of the scope and modalities for 
complaints of the types provided for under subpa ragraphs 1(b) and 1(c) of Article XXIII of 
GATT 1994 and make recommendations to the first Ministerial Conference to be held after 1 
August 2004.  It is agreed that, in the meanti me, Members will not initiate such complaints 
under the TRIPS Agreement."183 
 
Given the overall outcome of the Cancún meeting, this  text was not adopted.  The text that was finally 
adopted on this matter in the 1 August 2004 Deci sion of the General Council is reproduced in 
paragraph 4 of this note.   
  
XI. SITUATION COMPLAINTS 
80. Article XXIII:1(c) of GATT 1994 refers to compla ints based on "the existence of any other 
situation", so-called "situation" complaints.  
81. 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 situ ation 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 repor ts on situation complaints requir es "positive" consensus (i.e. all 
Members need to agree to a report before it is adopted).
184 
82. It has been noted that the rationale for "situa tion" complaints was to leave open the possibility 
for Members "to seek a modification of the undertak ings it has given if, by the action of others, 
conditions are created in which it can no longer ca rry out those undertakings" (E/CONF.2/C.6/W.19, 
page 1).  It has been argued that, from a policy pers pective, "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, environmen tal and cultural measures should not be construed 
as denying ambiguously defined bene fits under the TRIPS Agreement.185  
83. It has been noted that the GATS does not allo w situation complaints under that Agreement.186 
84. It has been argued that, as there had never been  a dispute based on a situation complaint and 
as allowing claims based on "any situation" woul d introduce profound uncertainty into the TRIPS 
Agreement, there was no justification for introd ucing this remedy into the TRIPS Agreement.187 
                                                      
182 Dated 13 September 2003. 
183 JOB(03)/150/Rev.2, para. 22. 
184 IP/C/M/30, para. 197. 
185 IP/C/W/249, Section V, page 5. 
186 Article XXIII of GATS, referred to in JOB(01)/43, page 3.   IP/C/W/349/Rev.1 
Page 23 
 
 
 XII. IMPEDIMENT TO ATTAINMENT OF AN OBJECTIVE 
85. The chapeau of Article XXIII:1 of GATT 1994 refers  not only to the possibility of complaints 
alleging that "any benefit … is be ing nullified or impaired" but also to the possibility of complaints 
alleging "impediment to attainment of an objec tive" as the result of the matters set out in 
paragraphs (a) ("violation") or (b) ("non-viola tion") or (c) ("situation"), respectively.   
86. 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.188 
87. It has been noted that the GATS does not allow complaints based on impediment to 
attainment of an objective of that agreement.189  
                                                                                                                                                                     
187 IP/C/W/385, para. 55. 
188 JOB(01)/43, page 3. 
189 Article XXIII GATS, referred to in JOB(01)/43, page 3. IP/C/W/349/Rev.1 
Page 24  
 
  
ANNEX 
 
TRIPS COUNCIL DOCUMENTATION ON NON-VIOLATION  
AND SITUATION COMPLAINTS 
 
 
Submitted by Document 
reference Title 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-Violation 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 Examination 
of 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 Sc ope and 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 situ ation complaints.  
Communication from the Chair - headings 
which might be used in organizing further 
discussions   11 May 2001 
 Chairperson  JOB(02)/66 Non-violation and situation complaints: 
Annotated Agenda  21 June 2002 IP/C/W/349/Rev.1 
Page 25 
 
 
  Argentina, Bolivia, 
 Brazil, Colombia, Cuba,  Ecuador, Egypt, India,  Kenya, Malaysia,  Pakistan, Peru, Sri Lanka 
 and Venezuela  IP/C/W/385 
Non-violation and situation nullification o r
impairment under the TRIPS Agreement  30 October 2002 IP/C/W/349/Rev.1 
Page 26  
 
  
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 1999 
  IP/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 2001 
  IP/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   IP/C/M/36/Add.1 Meeting held on 25-27 June 2002 
  IP/C/M/37/Add.1 Meeting held on 17-19 September 2002 
  IP/C/M/38  Meeting held on 25-27 and 29 November, and 20 December 2002 
  IP/C/M/39  Meeting held on 18-19 February 2003   IP/C/M/40  Meeting held on 4-5 June 2003   IP/C/M/45  Meeting held on 21 September 2004 
 
__________