WORLD TRADE  
ORGANIZATION   
IP/C/W/349/Rev.2 
19 October 2012 
 (12-5705) 
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 ........................ 8 	
V.	 NATURE OF MEASURES THAT COULD BE AT ISSUE ................................................... 14 	
VI.	 CAUSALITY ..................................................................................................................... ....... 17	
VII.	BURDEN OF DEMONSTRATION OF NULLIFICATION AND IMPAIRMENT ............... 17 	
VIII.	REMEDY ........................................................................................................................ .......... 18	
IX.	 NEED FOR GUIDANCE ......................................................................................................... 18 	
X.	 PROPOSALS FOR ACTION ................................................................................................... 20 	
XI.	 SITUATION COMPLAINTS ................................................................................................... 23 	
XII.	IMPEDIMENT TO ATTAINMENT OF AN OBJECTIVE ..................................................... 24 	
 
 I. INTRODUCTION 
1. At its meeting on 5 June 2012
1 the Council requested the Secretariat to update the Summary 
Note of the points raised in the substantive discussi on of this agenda item so far (IP/C/W/349), which 
it had prepared in response to a request from th e Council in March 2002 and which had last been 
updated in 2004 (IP/C/W/349/Rev.1).  The present revi sion of that note responds to this request by 
including the points that have been raised since the circulation of the updated version in 2004.  Being 
a summary, this note is not exhaustive and is prepar ed for the assistance of Members in continuing the 
substantive discussion of this agenda item.  Referen ce should be made to the complete record of the 
discussion as contained in the papers submitted by de legations and minutes of meetings listed in the 
Annex for a complete picture. 
                                                      
1 See the minutes of that meeting, document IP/C/M/70, para. 109-110. This document has been prepa red under the Secretariat's own 
responsibility and without prejudice to the positions of Members 
and to their rights and obligations under the WTO IP/C/W/349/Rev.2 
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 continued to discuss the subject, most recently at  its meeting in June 2012, and at the time of 
drafting this document it remains on the Council's ag enda.  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), as well as the present Summary Note.  In 2001, the Chair circulated some headings 
which could be used to organize further discussions, which were based in part on the subheadings of 
the Secretariat note (JOB(01)/70).  In 2002, the Chai r 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. Members subsequently extended the morato rium at the 2005 Hong Kong Ministerial 
Conference,4 at the 2009 Geneva Ministerial Conference,5 and most recently at the 2011 Geneva 
Ministerial Conference. This latest decision reads as follows: 
"We take note of the work done by the Counc il for Trade-Related Aspects of Intellectual 
Property Rights pursuant to our Decision of 2 December 2009 on "TRIPS Non-Violation and Situation Complaints" (WT/L/783), and direct it to  continue its examination of the scope and 
modalities for complaints of the types provide d for under subparagraphs 1(b) and 1(c) of 
Article XXIII of GATT 1994 and make recommendati ons to our next Session, which we have 
                                                      
2 WT/MIN(01)/17, para. 11.1. 
3 WT/L/579, para. 1(h). 
4 WT/MIN(05)/DEC, para. 45. 
5 Decision of the Ministerial Conference on "TRIPS non-violation and situation complaints" 
(WT/L/783) of 2 December 2009.  IP/C/W/349/Rev.2 
 Page 3 
 
 
  decided to hold in 2013.  It is agreed that, in the meantime, Members will not initiate such 
complaints under the TRIPS Agreement."6 
 
6. At its meeting of 5 June 2012, the Council for TRIPS requested the Secretariat to prepare the 
present update of the earlier Summary Note.7 
7. 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 points ma de under 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 co ncludes with brief sections on situation complaints 
and complaints alleging impediment to the atta inment of an objective of the Agreement. 
II. EXCEPTIONAL CHARACTER OF THE NON-VIOLATION REMEDY 
8. The view has been expressed that non-viola tion nullification and impairment (the "non-
violation remedy") has an exceptional character.8  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" .9  The view has been expressed that non-violation complaints could only succeed 
under the TRIPS Agreement in a very limited number of cases.10  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 th e TRIPS context and, if so, on what conditions 
and within what limits.11  It has been suggested that the ex ceptional character of the remedy could 
have a bearing on the scope of non-violation comp laints entertained under the TRIPS Agreement.12 
III. PURPOSE OF THE NON-VIOLATION REMEDY 
9. 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.  
10. 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. 
                                                      
6 Decision of the Ministerial Conference on "TRIPS non-violation and situation complaints" 
(WT/L/842) of 17 December 2011. 
7 IP/C/M/70, para. 109. 
8 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.  
9 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. 
10 IP/C/W/194, page 4 . 
11 IP/C/M/24, para. 105. 
12 IP/C/W/212, page 8. IP/C/W/349/Rev.2 
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  11. 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.
13  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.14  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." 15 
 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.
16  For the above reasons, the non-violation 
remedy was simply inapplicable in the context of the TRIPS Agreement17, which, unlike other WTO 
agreements, is a sui generis  agreement which is not designed to protect market access18 or the balance 
of tariff concessions, but rather to establish mini mum standards of intell ectual property protection,19 
which, if abused, may even undermine markets access (see, e.g., Article 8).20  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.21  Failure by Members to comply with the 
obligation to provide these minimum standards coul d be directly addressed as a violation of the 
TRIPS Agreement.22 Moreover, the minimum standards have sufficient guarantees at the national 
level under the TRIPS enforcement provisions23, because right holders can have recourse to domestic 
courts in respect of benefits derived from protection.24  
                                                      
13 IP/C/W/124, paras. 27-28 and IP/C/W/385, paras.  13-14; IP/C/M/40, para. 152; IP/C/M/67, 
para. 258. 
14 IP/C/M/32, para. 156; IP/C/W/385, para. 15. 
15 WT/DS50/AB/R, para. 41, cited at IP/C/W/194, page 6. 
16 IP/C/W/385, para. 15. 
17 IP/C/M/23, para. 111; IP/C/M/37/Add.1, para. 278; IP/C/M/40, para. 160; IP/C/M/46, para. 170; 
IP/C/M/46, para. 175; IP/C/M/46, para. 182; IP/C/M/46, para. 185; IP/C/M/47, para. 244; IP/C/M/49, para. 239; 
IP/C/M/62, para. 108; IP/C/M/63, para. 113; IP/C/M/63, para. 114; IP/C/M/64, para. 313; IP/C/M/64, para. 315; 
IP/C/M/64, para. 317; IP/C/M/65, para. 201; IP/C/M/67, para. 259; IP/C/M/67, para. 261; IP/C/M/67, para. 262; 
IP/C/M/67, para. 264; IP/C/M/67, para. 267; IP/C/M/67, para. 268; IP/C/M/69, para. 97; IP/C/M/69, para. 98; 
IP/C/M/69, para. 107; IP/C/M/69, para. 109; IP/C/M/70, para. 98; IP/C/M/70, para. 100; IP/C/M/70, para. 103; 
IP/C/M/70, para. 108. 
18 IP/C/M/46, para. 173; IP/C/M/46, para. 175; IP/C /M/46, para. 178; IP/C/M/46, para 185; IP/C/M/47, 
para. 233; IP/C/M/47, para. 233; IP/C/M/49, para. 224; IP/C/M/49, para 235; IP/C/M/49, para. 237; IP/C/M/61, 
para. 142; IP/C/M/61, para. 144; IP/C/M/61, para. 145; IP/C/M/61, para. 146; IP/C/M/61, para. 147; IP/C/M/61, 
para. 150; IP/C/M/63, para. 111; IP/C/M/64, para. 311; IP/C/M/66, para. 117; IP/C/M/66, para. 119; IP/C/M/67, 
para. 259; IP/C/M/69, para. 101; IP/C/M/69, para. 101. 
19 IP/C/M/66, para. 111; IP/C/M/66, para. 116; IP/C/M/67, para. 253; IP/C/M/67, para. 260; 
IP/C/M/69, para. 102. 
20 IP/C/W/385; para. 31. 
21 IP/C/M/22, para. 142. 
22 IP/C/M/46, para. 178; IP/C/M/49, para. 235. 
23 IP/C/M/23, para. 126; IP/C/W/385, para. 33-36 ; IP/C/M/37/Add.1, para. 267. 
24 IP/C/M/21, para. 120.  IP/C/W/349/Rev.2 
 Page 5 
 
 
  12. On the other hand, it has been noted that th ree GATT panel reports had also considered 
non-violation claims based on gene ral obligations rather than sp ecific tariff concessions, and found 
that GATT Article XXIII:1(b) is not limited to tariff benefits.25  It has been argued that applying the 
non-violation remedy under TRIPS would provide security  and predictability and help ensure that the 
TRIPS Agreement's flexibility is not misused in order to avoid legitimate obligations.26  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 with particular 
provisions of the TRIPS Agreement and which wished to avoid obligations without directly violating 
them.27   
13. 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).28  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.29  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.30  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 change31 and unsettle its delicate balance of rights and obligations32 
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.33  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,34 that had not been negotiated.35  The introduction of the non-violation 
remedy could also undermine the flexib ilities inherent in the TRIPS Agreement36 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.37  The application of non-violation 
                                                      
25 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. 
26 IP/C/M/66, para. 123; IP/C/M/67, para. 252. 
27 IP/C/M/23, para 114 ; IP/C/M/47, para. 238; IP/C/M/48, para. 180; IP/C/M/49, para. 230; 
IP/C/M/64, para. 312; IP/C/M/65, para. 200; IP/C/M/67, para. 276. 
28 IP/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; 
IP/C/M/47, para. 236; IP/C/M/61, para. 149; IP/C/M/67, para. 265; IP/C/M/67, para. 266. 
29 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; IP/C/M/46, para. 172; IP/C/M/67, para. 259. 
30 IP/C/W/385, para. 26. 
31 IP/C/M/23, para. 111. 
32 IP/C/M/24, para. 105; IP/C/M/46, para. 174; IP/C/M/46, para. 175; IP/C/M/46, para. 183; 
IP/C/M/47, para. 240; IP/C/M/59, para. 74; IP/C/M/59, para. 75; IP/C/M/70, para. 106; IP/C/M/70, para. 107.  
33 IP/C/W/385, para. 21; IP/C/M/37/Add.1, para. 268; IP/C/M/66, para. 112. 
34 IP/C/W/385, para.22; IP/C/M/40, para. 156. 
35 IP/C/M/66, para. 111. 
36 IP/C/M/37/Add.1, para. 268; IP/C/M/65, para. 20 2; IP/C/M/66, para. 119; IP/C/M/67, para. 259; 
IP/C/M/69, para. 97; IP/C/M/69, para. 101; IP/C/M/69, para. 105. 
37 IP/C/W/385, para 27-28; IP/C/M/66, para. 112; ; IP/C/M/67, para. 260; IP/C/M/69, para. 102. IP/C/W/349/Rev.2 
Page 6  
 
  complaints under the TRIPS Agreement would introduce legal uncertainty
38 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
39 and consequently affect the 
predictability and security which the multilateral trading system sought to provide for all WTO 
Members.40  It was said that the potential for bringing n on-violation complaints had already been cited 
in a number of bilateral consultations  about intellectual property rights.41 
14. 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 whether a non-violati on remedy is also necessary has been discussed.   
15. 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.
42  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 th e 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."
43 
 
16. 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.44  The International Law Commission has been working on the 
                                                      
38 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; IP/C/M/46, 
para. 172; IP/C/M/46, para. 175; IP/C/M/46, para. 178; IP/C/M/46, para. 183; IP/C/M/46, para. 185; IP/C/M/47, 
para. 237; IP/C/M/49, para 235; IP/C/M/49, para. 226; IP/C/M/61, para. 141; IP/C/M/62, para. 61; IP/C/M/69, 
para. 97. 
39 ; IP/C/M/66, para. 113. 
40 IP/C/W/385, para. 54; IP/C/M/59, para. 75; IP/C/M /64, para. 316; IP/C/M/66, para. 113; IP/C/M/67, 
para. 260; IP/C/M/69, para. 103; IP/C/M/70, para. 107. 
41 IP/C/W/385, para. 53. 
42 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; IP/C/M/46, para. 183; IP/C/M/47, para. 237; IP/C/M/48, para. 175; IP/C/M/65, para. 202; 
IP/C/M/66, para. 114; IP/C/M/69, para. 100; IP/C/M/69, para. 106; IP/C/M/70, para. 105. 
43 WT/DS58/AB/R, para. 158, cited at IP/C/W/385, para. 42. 
44 IP/C/M/23, para. 120.  IP/C/W/349/Rev.2 
 Page 7 
 
 
  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.45  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.46 
17. 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. 
18. It has been argued that the non-violation remedy  is an important element of the WTO dispute 
settlement system47 and that there is a need to maintain coherence among the different WTO 
agreements.48  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.49  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.50  
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.51  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.52   
19. 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 Agreement53 and that the TRIPS 
environment is different from the GATT and the GATS environment.54  It has been argued that 
introducing non-violation complaints under the TRIPS Agreement might introduce incoherence 
among WTO agreements55 as otherwise WTO-consistent measure s such as taxes and advertising 
                                                      
45 IP/C/M/23, para. 126.  Since that time, the International Law Commission has continued its work on 
unilateral acts of States and at its 58th session on 11 August 2006 adopted a set of 10 Guiding Principles 
(together with commentaries) applicable to unilateral decl arations of States capable of creating legal obligations 
(available at http://untreaty.un.org/ilc/texts/instrument s/english/draft%20articles/9_9_2006.pdf ) of which the 
UN General Assembly took note in Re solution 61/34 of 4 December 2006 .  
46 IP/C/M/27, para. 182. 
47 IP/C/M/21, para. 124; IP/C/M/40, para. 170; IP/C/M/64, para. 312; IP/C/M/65, para. 200. 
48 IP/C/M/27, para. 165; IP/C/M/37/Add.1, para. 286. 
49 IP/C/M/27, para. 177; IP/C/M/40, para. 170; IP/C/M /46, para 176; IP/C/M/47, para. 238; IP/C/M/48, 
para. 179; IP/C/M/49, para. 234; IP/C/M/61, para. 148; IP/C/M/62, para. 63; IP/C/M/63, para. 112; IP/C/M/64, 
para. 314; IP/C/M/65, para. 200; IP/C/M/65, para. 204; IP/C/M/66, para. 123; IP/C/M/66, para. 127; IP/C/M/67, 
para. 270; IP/C/M/67, para. 277; IP/C/M/69, para. 108. 
50 IP/C/M/23, para. 114; IP/C/M/38, para. 274; IP/C/M/40, para. 170; IP/C/M/46, para. 180; 
IP/C/M/67, para. 275. 
51 IP/C/W/194, Appendix, under the subheading 'Issues of Concerns to Other Members, Uncertainty as 
to Scope', page 8. 
52 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; IP/C/M/47, para. 238; IP/C/M/49, para. 230; 
IP/C/M/64, para. 312; IP/C/M/67, para. 252. 
53 IP/C/M/22, para. 146; IP/C/W/385, para. 31. 
54 IP/C/M/22, para. 144; IP/C/M/39, para. 180. 
55 IP/C/M/37/Add.1, para. 268; IP/C/M/39, para. 17 5; IP/C/M/40, para. 151; IP/C/M/66, para. 113; 
IP/C/M/67, para. 260. IP/C/W/349/Rev.2 
Page 8  
 
  requirements could then be cha llenged under the TRIPS Agreement
56 which would amount to 
establishing a new cause of action under the TRIPS Agreement.57  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.58   
20. 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.
59 
21. 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.60  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"61 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.62 
IV. NATURE OF BENEFITS ACCRUING UNDER THE TRIPS AGREEMENT 
22. Much of the substantive discussion of this ite m concerned the 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 
                                                      
56 IP/C/W/385, para. 18; IP/C/M/37/Add.1, para. 268; IP/C/M/66, para. 113. 
57 IP/C/W/385, para. 19. 
58 IP/C/W/385, Executive Summary and para. 15; IP/C/M/46, para. 178; IP/C/M/49, para. 235. 
59 IP/C/W/194, under the subheading 'The TRIPS Agreement is One Part of a Coherent System of 
Agreements', page.3.  See also  IP/C/M/30, para. 205.  
60 IP/C/W/385, para. 51; IP/C/M/37/Add.1, para. 270. 
61 IP/C/W/385, para. 51 citing IP/C/W/191, para. 13. 
62 IP/C/W/385, para. 51.  A similar statem ent is found at IP/C/M/39, para. 178.  IP/C/W/349/Rev.2 
 Page 9 
 
 
  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 
23. 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.63  
24. 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.64  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.65 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.66 
25. 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.67  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.68 
26. 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.69  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.70  It has been 
argued that these benefits would be best achieved by  a good faith performance of the obligations of 
the TRIPS Agreement.71  It has been argued that, in respect  of an agreement which contained rules 
                                                      
63 IP/C/W/212, Section B, page 4. 
64 IP/C/M/28, para. 193. 
65 IP/C/W/385, para. 32; IP/C/M/37/Add.1, para. 267. 
66 Job(00)/6166, paras.17-18. 
67 IP/C/M/28, para. 194. 
68 IP/C/M/37/Add.1, para. 281. 
69 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. 
70 IP/C/M/37/Add.1, para. 276; IP/C/M/39, para. 167; IP/C/M/40, para. 158. 
71 IP/C/W/385, paras. 38-39. IP/C/W/349/Rev.2 
Page 10  
 
  and disciplines such as the TRIPS Agreement, there could be no nullification if there was no violation 
or infringement.
72 
(b) Intellectual property protection 
27. 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.73 The reasonable expectations under Part II onwards 
were only of the minimum standards prescribed and not market access.74 
28. 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".75  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.76 
(c) Exploitation of rights 
29. 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.77  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.78 
(d) Market access 
30. 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 minimum 
standards and principles concerning the availability , scope and use of trade-related intellectual 
property rights79 and by ensuring that effective and appropr iate means for the enforcement of those 
                                                      
72 IP/C/M/37/Add.1, para 280. 
73 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. 
74 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. 
75 IP/C/M/27, para. 182. 
76 IP/C/M/27, para. 168. 
77 IP/C/W/249, under the subheading 'Benefit A ccruing Under the TRIPS Agreement', page 3. 
78 IP/C/W/194, under the subheading 'The TRIPS Agreement is One Part of a Coherent System of 
Agreements', page 3. 
79 IP/C/M/65, para. 204; IP/C/M/67, para. 270.  IP/C/W/349/Rev.2 
 Page 11 
 
 
  rights are available without themselves becoming barriers to legitimate trade.80  Its preamble begins 
with the words "Members, desiring to reduce distortio ns and impediments to international trade …".  
31. 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.81  Whilst it facilitates market access of goods and 
services with intellectual property rights, it is not a market access agreement as such82 as it concerned 
rights, not products.83  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.84  
32. 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.85  Like the TRIPS Agreement, they 
establish conditions under which intern ational trade is to be conducted.86  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.87 
33. 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.88  
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.89 
34. 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.90  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.91  It is argued that it is only because intellectual property rights 
                                                      
80 IP/C/W/194, under the subheading 'The TRIPS Ag reement is a Market Access Agreement', page 2. 
81 IP/C/M/62, para. 60. 
82 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. 
83 IP/CM/37/Add.1, para 280; IP/C/M/62, para. 62. 
84 IP/C/M/27, para. 159. 
85 IP/C/W/194, Appendix, under the subheading 'Issues of Concern to Other Members, Uncertainty as 
to scope', page 7. 
86 Ibid, page 7. 
87 IP/C/W/194, under the subheading 'The TRIPS Ag reement is a Market Access Agreement', page 2. 
88 IP/C/M/28, para. 194; IP/C/W/385, para. 33-36 ; IP/C/M/37/Add.1, para. 267. 
89 IP/C/W/385, para. 33. 
90 IP/C/W/194, Appendix, under the subheading 'Issues of Concern to Other Members, Undetermined 
regulatory authority', page 8. 
91 IP/C/W/194, under the subheading 'Issues of Concern to Other Members, Uncertainty as to Scope', 
page 8. IP/C/W/349/Rev.2 
Page 12  
 
  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 
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.
92 
35. 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.93  The notion of a 
benefit in the TRIPS context appears to be qu ite different from that in the GATT context.94  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.95 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 
36. 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.96  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.97 
37. 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.98 
38. It has been argued that this concept is very complex in the TRIPS context.99  Under the TRIPS 
Agreement, there is not only the competitive relati onship between a Member's own nationals and the 
                                                      
92 IP/C/W/194, Appendix, under the subheading 'Issues of Concern to Other Members, Uncertainty as 
to scope', page 8. 
93 IP/C/W/249, under the subheading 'Benefit A ccruing Under the TRIPS Agreement', page 3. 
94 IP/C/M/29, para. 223. 
95 IP/C/W/212, Section C, page 5. 
96 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). 
97 IP/C/W/212, Section C, page 6.  See also  IP/C/M/27, para. 164. 
98 IP/C/M/29, para.223, referring to JOB(00)/6166 paras. 13-14. 
99 JOB(00)/6166, para. 14.  IP/C/W/349/Rev.2 
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  nationals of other Members, but also the bargai n between the right holder and society as a whole100, to 
provide incentives and ensure that society benefits.101 
39. 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.102  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.103 
(f) Private right holders 
40. 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.104 
41. 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.
105 
42. 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.106  While the former were traditionally 
safeguarded by multilateral dispute settlement proce dures, the latter were enforced through domestic 
courts.107  Applying non-violation complaints could tec hnically mean that private rights could extend 
beyond what had been negotiated.108 
43. 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.109  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 
                                                      
100 IP/C/M/28, para. 193. 
101 IP/C/W/249, Section II, page 2. 
102 IP/C/W/385, para. 41. 
103 IP/C/M/23, para. 111; IP/C/W/385, para. 41. 
104 IP/C/M/27, para. 182; IP/C/W/385, para. 31; IP/C/M/37/Add.1, para. 267. 
105 IP/C/W/194, page 8. 
106 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. 
107 IP/C/W/385, para. 40. 
108 IP/C/M/37/Add.1, para. 281. 
109 IP/C/M/23, para. 120. IP/C/W/349/Rev.2 
Page 14  
 
  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.
110 
V. NATURE OF MEASURES THAT COULD BE AT ISSUE 
44. 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.   
45. 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.
111  In 
the absence of a common understanding among Members about this remedy, there is a potential 
chilling effect on the regulatory process.112  Member governments' responsib ility to regulate important 
matters should not be undermined by actual or th reatened non-violation complaints under the TRIPS 
Agreement.113 
46. 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.114  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.115  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.116  It has been questioned 
whether measures taken in fulfilment of Articles 7 and 8 could be interpreted as causing non-violation 
nullification of benefits.117 
47. 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 
                                                      
110 IP/C/M/28, para. 194. 
111 IP/C/W/249, para. 2.  Similar IP/C/M/30, para. 194. 
112 IP/C/M/27, para. 163, IP/C/W/385, para. 25. 
113 IP/C/M/27, para. 176. 
114 IP/C/W/194, under the subheading 'Issues of Concern to Other Members, Undermining regulatory 
authority', page 9.   
115 IP/C/M/23, para. 114. 
116 IP/C/W/194, under the subheading 'The TRIPS Agreement is One Part of a Coherent System of 
Agreements', page 3. 
117 IP/C/W/249, Section II, page 2.  IP/C/W/349/Rev.2 
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  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.118 
48. 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.119 
49. 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.120  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.121 
50. 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.122  It has been argued that acts of private par ties should not be considered when determining 
whether a "measure" exists,123 as it would be difficult to ask the state to assume an enforcement role 
regarding actions that were beyond the st ate's legal or jurisdictional system.124 
51. It has been questioned whether "measure" could include non-action .125  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.126 
52. 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.127 
53. 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 
                                                      
118 IP/C/W/385, para. 45. 
119 IP/C/W/249, Section II, page 2. 
120 IP/C/W/249, Section III(a), pages 2-3. 
121 IP/C/M/30, para. 204. 
122 See paragraph 32 of the Secretariat background note (IP/C/W/124). 
123 JOB(01)/43, page 2. 
124 IP/C/M/67, para. 256 
125 IP/C/W/249, Section III(a), page 3. 
126 IP/C/M/40, para. 167. 
127 IP/C/W/385, para. 46; IP/C/M/37/Add.1, para. 270. IP/C/W/349/Rev.2 
Page 16  
 
  anticipated.  Timing  is key when assessing whether a measure could have been reasonably 
expected.
128  It was suggested that the TRIPS Agreement was concluded on 15 April 1994.129  
54. 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 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.130   
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.
131 
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.132 
Another Member responded to this example:   A non-violation claim base d on this example would be 
unsuccessful because no benefits would be found.133 
Example C:  A Member could ban all advertising of  cigarettes, 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.134 
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.135 
Example D:  Member A may grant a very large in crease 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 
                                                      
128 IP/C/W/124, Secretariat note, para. 56. 
129 IP/C/W/249, Section III(d), page 5, referring  to IP/C/W/124, Secretariat note, para. 56. 
130 IP/C/W/191, para. 10. 
131 IP/C/W/194, under the subheading 'The TRIPS Agreement is One Part of a Coherent System of 
Agreements', page 3. 
132 IP/C/W/191, para. 10. 
133 IP/C/W/194, under the subheading 'The TRIPS Agreement is One Part of a Coherent System of 
Agreements', page 3. 
134 IP/C/M/30, para. 200. 
135 IP/C/M/30, para. 205.  IP/C/W/349/Rev.2 
 Page 17 
 
 
  separate works, say movies or theatre plays, based on or using a work that was expected to be in the 
public domain.136 
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.137 
55. 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 
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.138 
56. 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.139 
57. 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.140 
VI. CAUSALITY 
58. 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.141  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.142  Article 26.1(a) of the DSU 
provides for additional rules, but there may be  other implications in the TRIPS context.143 
VII. BURDEN OF DEMONSTRATION OF NULLIFICATION AND IMPAIRMENT 
59. 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.144  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 
                                                      
136 IP/C/W/249, Section II, page 2. 
137 IP/C/M/27, para. 182. 
138 IP/C/M/27, para. 168. 
139 IP/C/W/249, Section III(b), pages 3-4. 
140 IP/C/M/23, para. 122. 
141 JOB(00)/6166, para. 13. 
142 JOB(00)/6166, para. 14. 
143 JOB(00)/6166, para. 15. 
144 IP/C/M/30, para. 204. IP/C/W/349/Rev.2 
Page 18  
 
  suggested that the exceptional character of the re medy could have implica tions for the burden of 
proof.
145  It has been suggested that Members should consider whether a higher standard should be 
applied in "non-violation" cases in the TRIPS context.146  
VIII.  REMEDY 
60. 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 :  
"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."147   
 
61. 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.148  
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.149  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.
150  
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.151  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.152  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.153  
IX. NEED FOR GUIDANCE 
62. 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.154  Because of a lack of agreement of the meani ng of "benefit" in the context of intellectual 
                                                      
145 IP/C/W/212, page 8. 
146 IP/C/W/249, Section IV, page 5. 
147 IP/C/W/249, Section III(c), page  4 citing WT/DS50/AB/R, para. 41. 
148 IP/C/W/194, under the subheading 'Non -Vio lation Nullification and Impairment', page 6. 
149 IP/C/W/249, Section III(c), page 4. 
150 IP/C/W/385, para. 49 
151 IP/C/M/24, para. 106. 
152 IP/C/W/249, Section III(c), page 4. 
153 IP/C/W/385, para. 49 
154 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.  IP/C/W/349/Rev.2 
 Page 19 
 
 
  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.155 
63. 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".156  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.157  In fact, this is the same guidance that is available under other 
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. 158 
64. 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 agreement159, which deals with 
private rights160 and which could lag behind the expansi on of new technological property rights.161  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 Body162, 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.
163  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.164  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.165  
65. 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.166  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.167 
                                                      
155 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. 
156 IP/C/W/194, under the subheading 'The TRIPS Agreement is One Part of a Coherent System of 
Agreements', page 3. 
157 IP/C/M/32, para. 159; IP/C/M/39, para. 183; IP/C/M/46, para. 177; IP/C/M/47, para. 238; 
IP/C/M/48, para. 180; IP/C/M/61, para. 148; IP/C/M/66, para. 127; IP/C/M/69, para. 108. 
158 IP/C/M/32, para. 159. 
159 IP/C/M/27, para. 163; IP/C/W/385, para. 33-36 ; IP/C/M/37/Add.1, para. 267. 
160 IP/C/M/23, para. 112. 
161 IP/C/M/23, para. 120. 
162 WT/DS50/AB/R, para. 42. 
163 IP/C/W/385, para. 48. 
164 IP/C/W/127, under the subheading 'Issues of Concern', page 2. 
165 IP/C/M/27, para. 165. 
166 IP/C/M/27, para. 166. 
167 IP/C/M/29, para. 229. IP/C/W/349/Rev.2 
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  66. 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.
168 
X. PROPOSALS FOR ACTION 
67. With regard to action to be taken by  the Council in this matter the following general remarks 
have been made: 
- there should be no weakening of the rights or obligations of Members by non-
violation complaints under the TRIPS Agreement169; 
- the development perspective needed  to be taken into consideration170; 
- 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 Members171; 
- the scope of the non-violation remedy should be carefully and narrowly defined172; 
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,173 nor should it result in new 
responsibilities that had not been negotiated174, and should not result in impediments 
towards the use of legitimate measures under the  TRIPS Agreement.175 
68. 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.176  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. 177 
                                                      
168 JOB(00)/6166, para. 11. 
169 IP/C/M/27, para. 176. 
170 IP/C/M/23, para. 119. 
171 IP/C/M/22, para. 140. 
172 IP/C/M/29, para. 223. 
173 IP/C/M/30, para. 194. 
174 IP/C/M/23, para. 119.  See IP/C/M/23, para. 122. 
175 IP/C/M/30, para. 201. 
176 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. 
177 IP/C/M/33, para. 134.  IP/C/W/349/Rev.2 
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  69. 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.178  
70. 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 
  - for a complaint under GATT Article XXIII:1(c), an analogous situation has arisen.
 179 
 71. 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).
180 
72. 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.181 
73. It has been argued that it is important to en sure that a complaint lodged under a particular 
WTO agreement should lead to a di spute settlement result that did not undermine coherence among 
WTO agreements .182  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.183 
74. 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.184 
75. 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 
                                                      
178 IP/C/M/30, para. 205. 
179 IP/C/W/212, page 8, drawing points from IP/C/W/194, page 9. 
180 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. 
181 IP/C/W/212, page 9. 
182 IP/C/M/27, para. 159. 
183 JOB(00)/6166, para. 18. 
184 IP/C/W/212, page 9, referring to IP/C/W/194, page 3. IP/C/W/349/Rev.2 
Page 22  
 
  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 ag reements or the GATS.
185  
It has been suggested that, as a minimum, in  order to maintain consistency among the WTO 
agreements, measures that fall within the genera l exceptions found within the GATT or GATS should 
not be subject to dispute settlement under the TRIPS Agreement.186 
76. 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 
against anti-competitive abuse of IPRs  consistent with Article 40.2.187  Other provisions were also 
suggested, such as Articles 21, 27.2, 27.3 and 31.188 
77. 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 .189 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).190  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.191 
78. In an informal meeting of the TRIPS Council, held on 23 May 2003192, 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;
193 
                                                      
185 ; IP/C/M/66, para. 113. 
186 IP/C/W/191, para. 11.  
187 IP/C/W/212, Section IV(A) Scope, page 9. 
188 IP/C/M/29, para. 225.  
189 Through its reference to the GATT decision of 12 April 1989 on "Improvements to the GATT 
dispute settlement rules and procedures" (L/6489). 
190 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. 
191 IP/C/M/30, para. 200. 
192 This was reported to the formal meeting of the TRIPS Council on 4-5 June 2003; See IP/C/M/40, 
paras. 143-144. 
193 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; IP/C/M/46, para. 173; IP/C/M/46, 
para. 178; IP/C/M/46, para. 183; IP/C/M/46, para. 185; IP/C/M/47, para. 235; ; IP/C/M/48, para. 183; 
IP/C/M/49, para. 226; IP/C/M/49, para. 227; IP/C/M/49, para. 228; IP/C/M/49, para. 236; IP/C/M/49, para. 227; 
IP/C/M/59, para. 57; IP/C/M/63, para. 108; IP/C/M/64, para. 311; IP/C/M/64, para. 316; IP/C/M/64, para. 318; 
IP/C/M/64, para. 319; IP/C/M/64, para. 320; IP/C/M/65, para. 203; IP/C/M/66, para. 115; IP/C/M/66, para. 116;  IP/C/W/349/Rev.2 
 Page 23 
 
 
  - the non-violation remedy should apply without any conditions;194 
- 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.195 
79. Since then, these options have been discussed in informal c onsultations and in the TRIPS 
Council at occasions when Members have consid ered recommendations on this matter to the 
Ministerial Conferences, most recently at the Council's meeting on 28-29 February 2012.196 The 
footnotes to these options in the previous paragraph indicate the support given to each of them at that 
Council meeting as well as on earlier occasions.  
80. Different views have also been expressed with respect to the requirement of a 
recommendation by the TRIPS Council to the Ministerial Conference. It has been argued that a 
recommendation would be required only if the Coun cil made any recommendations that contained 
some specific suggestions on the scope and modalities for such complaints, and that no 
recommendation was required if the Council wished th at the moratorium should expire, after which 
non-violation complaints would become applicable to the TRIPS Agreement.197 In response, it has 
been argued that an application of non-violation co mplaints would require the consensus of the entire 
membership, as stipulated in Artic le 64.3 of the TRIPS Agreement.198   
XI. SITUATION COMPLAINTS 
81. Article XXIII:1(c) of GATT 1994 refers to compla ints based on "the existence of any other 
situation", so-called "situation" complaints.  
82. 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).199 
                                                                                                                                                                     
IP/C/M/66, para. 117; IP/C/M/66, para. 120; IP/C/M/66, para. 126; IP/C/M/69, para. 98; IP/C/M/69, para. 99; 
IP/C/M/69, para. 106.   
194 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 167-1 68; IP/C/M/40, paras. 170-173; IP/C/M/46, para. 176; 
IP/C/M/46, para. 180; IP/C/M/47, para. 238; IP/C/M/48, para. 197; IP/C/M/49, para. 230; IP/C/M/61, para. 143; 
IP/C/M/61, para. 148; IP/C/M/63, para. 110; IP/C/M/63, para. 112; IP/C/M/64, para. 312; IP/C/M/64, para. 314; 
IP/C/M/65, para. 200; IP/C/M/65, para. 204; IP/C/M/66, para. 124; IP/C/M/66, para. 127; IP/C/M/67, para. 270. 
195 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/M/47, para. 234; IP/C/M/48, para. 184; 
IP/C/M/49, para. 229; IP/C/M/61, para. 140. 
196 IP/C/M/69, para. 98. 
197 IP/C/W/194, page 1, arguing that any decision to extend the period of non-application could be 
made "only by consensus"; IP/C/M/60, para. 57, reporting on informal consultations held; IP/C/M/61, para. 148.  
198 IP/C/M/66, para. 126; IP/C/M/69, para. 96; IP/C/M/70, para. 98. 
199 IP/C/M/30, para. 197. IP/C/W/349/Rev.2 
Page 24  
 
  83. 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.
200  
84. It has been noted that the GATS does not allo w situation complaints under that Agreement.201 
85. 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.202 
XII. IMPEDIMENT TO ATTAINMENT OF AN OBJECTIVE 
86. 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.   
87. 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.203 
88. It has been noted that the GATS does not allow complaints based on impediment to 
attainment of an objective of that agreement.204  
                                                      
200 IP/C/W/249, Section V, page 5. 
201 Article XXIII of GATS, referred to in JOB(01)/43, page 3.   
202 IP/C/W/385, para. 55. 
203 JOB(01)/43, page 3. 
204 Article XXIII GATS, referred to in JOB(01)/43, page 3.  IP/C/W/349/Rev.2 
 Page 25 
 
 
   
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.2 
Page 26  
 
  Argentina, Bolivia, 
Brazil, Colombia, 
Cuba, Ecuador, Egypt, India, Kenya, Malaysia, Pakistan, Peru, Sri Lanka and 
Venezuela  IP/C/W/385 
Non-violation and situ ation nullification o r
impairment under the TRIPS Agreement  30 October 2002 
 Secretariat   IP/C/W/349 Non-Violation and Situation Complaints –
Summary Note by the Secretariat    19 June 2002 
 Secretariat   IP/C/W/349/Rev.1 Non-Violation and Situation Complaints –
Summary Note by the Secretariat     24 November 2004  IP/C/W/349/Rev.2 
 Page 27 
 
 
  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   IP/C/M46  Meeting held on 1-2 December 2004 
  IP/C/M47  Meeting held on 8-9 and 31 March 2005 
  IP/C/M48  Meeting held on 14-15 June 2005   IP/C/M/49  Meeting held on 25-26 and 28 October, 29 November and  
     6 December 2005   IP/C/M/50  Meeting held on 14-15 March 2006   IP/C/M/51  Meeting held on 14-15 June 2006 
IP/C/M/52   Meeting held on 25-26 October 2006 
IP/C/M/53   Meeting held on 13 February 2007 IP/C/M/54   Meeting held on 5 June 2007 IP/C/M/55   Meeting held on 23-24 October 2007 IP/C/M/56   Meeting held on 13 March 2008 
IP/C/M/57   Meeting held on 17 June 2008 
IP/C/M/58   Meeting held on 28 October 2008 IP/C/M/59   Meeting held on 3 March 2009 IP/C/M/60   Meeting held 8-9 June 2009 IP/C/M/61   Meeting held 27-28 Oct and 6 November 2009 IP/C/M/62   Meeting held 2-3 March 2010 
IP/C/M/63   Meeting held 8-9 June 2010 
IP/C/M/64   Meeting held on 26-27 October 2010 IP/C/M/65   Meeting held on 1 March 2011 IP/C/M/66   Meeting held on 7 June 2011 IP/C/M/67   Meeting held on 26-27 October and 17 November 2011 
IP/C/M/69   Meeting held on 28-29 February 2012 
IP/C/M/70   Meeting held on 5 June 2012  
__________