IP/C/W/599  
 
10 June 2014  
(14-3358)  Page: 1/9  
Council for Trade-Related Aspects of 
Intellectual Property Rights  Original: English  
 
NON-VIOLATION COMPLAINTS UNDER THE TRIPS AGREEMENT 
 
COMMUNICATION FROM THE UNITED STATES 
 
The following communication, dated 10 June 2014, is being circulated at the request of the 
delegation of the United States.  
_______________ 
 
 
1  INTRODUCTION 
1.1.  The applicability of non-violation complaints to the World Trade Organization (WTO) 
Agreement on Trade-Related Aspects of Intellec tual Property Rights (TRIPS) is a matter of 
considerable importance to WTO Members. Numerous WTO Members have intervened on this topic 
d u r i n g  m e e t i n g s  o f  t h e  T R I P S  C o u n c i l  a s  w e l l  a s  i n  o t h e r  b o d i e s  o f  t h e  W T O  a n d  G e n e r a l  
Agreement on Tariffs and Trade (GATT),
1 and have also submitted several communications to the 
TRIPS Council on this issue.2 While the views of Members may vary, Members have consistently 
agreed on the importance of continued examination of this issue. This agreement was reflected 
most recently at the WTO Ministerial Conference in Bali, where Ministers decided on 
7 December 2013: 
W e  t a k e  n o t e  o f  t h e  w o r k  d o n e  b y  t h e  C o u n c i l  f o r  T r a d e - R e l a t e d  A s p e c t s  o f  
Intellectual Property Rights pursuant to our Decision of 17/12/2011 on "TRIPS 
Non-Violation and Situation Complaints" (WT/L/842), and direct it to continue its 
examination of the scope and modalities for complaints of the types provided for 
under subparagraphs 1(b) and 1(c) of Article XXIII of GATT 1994 and make recommendations to our next Session, which we have decided to hold in 2015. It is agreed that, in the meantime, Members will not initiate such complaints under the TRIPS Agreement.
3 
 
1.2.  The decision of the United States to join co nsensus on that decision is without prejudice to its 
continued position that non-violation and situation complaints are fully appropriate in the context 
of the TRIPS Agreement. In fact, the U.S. decision  to join consensus was premised on the interest 
expressed by Members to take up intensified work on this issue in the TRIPS Council following the 2013 Bali Ministerial, which was reflected in the statement of the Chair of the TRIPS Council at the 
10-11 October 2013 meeting of the Council, where he explained: 
                                               
1 See, e.g.,  Summary Note by the Secretariat: Revision, 19 October 2012, IP/C/W/349/Rev.2; 
Summary Note by the Secretariat: Revision, 24 Nove mber 2004, IP/C/W/349/Rev.1; Summary Note by the 
Secretariat, 19 June 2002, IP/C/W/349; Note by the Secretariat, 28 January 1999, IP/C/W/124. 
2 See, e.g.,  Communication from Argentina, Bolivia, Braz il, Colombia, Cuba, Ecuador, Egypt, India, 
Kenya, Malaysia, Pakistan, Peru, Sri Lanka and Ve nezuela, 30 October 2002; Communication from Canada, 
29 March 2001, IP/C/W/249; Communication from Austra lia, 27 September 2000, IP/C/W/212; Communication 
from the United States of America, 17 July 2000, IP/C/W/194; Communication from Canada, the Czech 
Republic, the European Communities and their member States, Hungary and Turkey, 22 June 2000, 
IP/C/W/191; Proposal from Cuba, the Dominican Repu blic, Egypt, Indonesia, Malaysia and Pakistan, 
29 April 1999; IP/C/W/141; Communication from Canada, 10 February 1999, IP/C/W/127. 
3 WT/MIN(13)/31, WT/L/906, emphasis added. IP/C/W/599 
 
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  At the same time, Members had indicated readiness to engage early next year in 
intensified work on the examination of the scope and modalities for such 
complaints with the intent of finding a way out of the current cycle of extending the non-violation moratorium from one Ministerial Conference to the next.
4 
 
1.3.  This paper is intended to advance the Council's intensified examination of non-violation complaints under the TRIPS Agreement. The following summarizes: the relevant provisions of the 
GATT 1994, the TRIPS Agreement, and the Dispute Settlement Understanding (DSU); relevant 
GATT and WTO panel and Appellate Body reports; and responses to issues raised by other WTO Members regarding the applicability non-violation complaints under the TRIPS Agreement. 
2  PROVISIONS OF THE WTO AGREEMENT RE LATING TO NON-VIOLATION COMPLAINTS 
2.1.  Provisions of the WTO Agreement relating to  non-violation complaints include Article XXIII of 
GATT 1994, Article 64 of the TRIPS Agreement, and Ar ticles 3.2 and 26 of the DSU. Article XXIII of 
GATT 1994 allows a WTO Member to challenge another Member's measures which nullify or impair 
a benefit under the Agreement. Article XXIII limits non-violation complaints to those which may be 
brought by a member state if a "benefit accruing to it directly or indirectly under this Agreement is being nullified or impaired." A benefit is nullified or impaired for one of three reasons under this 
article: 1(a) the failure of another WTO Member to carry out its GATT obligations; 1(b) the 
application of another WTO Member's measure, whether or not it is GATT-inconsistent (non-violation complaint); or 1(c) the existence of any other situation (situation complaint).  
2.2.  Article 64 of the TRIPS Agreement incorporat es Articles XXII and XXIII of the GATT 1994 into 
the TRIPS Agreement. The language of the TRIPS Agreement is clear that the inclusion of non-
violation complaints was contemplated by WTO Members. Article 64.1 states: 
The provisions of Articles XXII and XXIII of GATT 1994 as elaborated and 
applied by the Dispute Settlement Understanding shall apply to consultations 
and the settlement of disputes under this Agreement except as otherwise 
specifically provided herein.5 
 
2.3.  Article 64.2 then provides that the provisio ns of non-violation and situation complaints in 
GATT Article XXIII will not apply for a period of five  years following the entry into force of the WTO 
Agreement. It is clear that after five years, those provisions would apply to the TRIPS Agreement. 
Finally, Article 64.3 is explicit and unambiguous that  any extension of the five-year period must be 
agreed by consensus. It is clear from the text  of Article 64 of the TRIPS Agreement that non-
violation complaints were envisioned by the Agr eement's drafters as applying to the Agreement. 
2.4.  During 1999, the TRIPS Council did examine, during its meetings, the scope and modalities of 
non-violation complaints. The Council, however, reached no conclusions and made no recommendations. On 1 January 2000, the delay in application provided by Article 64.2 ceased. It 
was only on 14 November 2001, that Ministers de cided to continue to examine the scope and 
modalities for such complaints and to make recommendations to the Fifth Session of the Ministerial Conference, which include an agreement not to initiate such complaints under the TRIPS Agreement until the 2003 Ministerial. However, no such recommendations were adopted at 
the 2003 Cancun Ministerial, meaning that the moratorium lapsed for a second time. It was not 
until July 2004 that the General Council agreed by consensus to a new moratorium on non-violation complaints. At the 14-15 March 2006, TRIPS Council meeting, WTO Members agreed to 
keep non-violation and situation complaints as a regular item on the agenda.
6 
2.5.  Article 3.2 of the DSU states, "Recommendations and rulings of the Dispute Settlement Body 
cannot add or diminish the rights and obligatio ns provided in the covered agreements". WTO 
panels and the Appellate Body are bound by Arti cle 3.2. Because the Marrakesh Agreement and its 
subsidiary agreements were the results of a single undertaking, it is highly unlikely, even if Article 3.2 did not exist, that a panel would de termine that something a WTO Member agreed to 
accept under one part of that single undertaking could nullify and impair benefits in another area. 
One of the conditions that panels have held must exist for a non-violation complaint to succeed is 
                                               
4 IP/C/M/74, para. 7.4, emphasis added. 
5 Emphasis added. 
6 IP/C/M/50, paras. 87-89. IP/C/W/599 
 
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  that the action complained of should not have b een foreseeable at the time of the negotiations. 
Obviously, if another WTO agreement expressly provides for an action to be taken, that action was foreseen at the time of the negotiations and the complaining party would not be able to demonstrate that it is entitled to succeed in its non-violation claim under the TRIPS Agreement. 
2.6.  Article 26 of the DSU also contemplates non-violation complaints by setting out the manner 
in which they are to be applied in the WTO. Th at Article limits the remedies available for non-
violation complaints to a "mutually satisfactory adjustment" with the implementing Member being 
under "no obligation to withdraw the measure."  
3  GATT AND WTO PANEL AND APPELLATE  BODY REPORTS ADDRESSING NON-
VIOLATION COMPLAINTS 
3.1.  Under the GATT, complaining parties included non-violation complaints in eight disputes.
7 In 
three GATT disputes, the panel upheld the non-vi olation complaint and GATT Members adopted the 
panel report. In two GATT disputes, the non-violation complaint was upheld, but GATT Members did not adopt the panel report. Finally, in three GATT disputes, the non-violation complaint was not 
upheld by the panel. The WTO dispute settlement mechanism has also addressed eight 
non-violation complaints.
8 In addition, WTO dispute settlement mechanism has discussed non-
violation in the context of the TRIPS Agreement.9 In those disputes, the panels either did not 
uphold the non-violation complaints or exercised judicial economy with respect to those 
complaints. Through these disputes, GATT and WTO panels and the Appellate Body have provided extensive guidance regarding non-violation complaints. These disputes have stressed the importance of maintaining the availability of non-violation complaints. 
3.1  An Exceptional and Important Remedy 
3.2.  The United States has previously recogn ized that "the number of instances in which a 
non-violation complaint could succeed" by me eting these requirements under the TRIPS 
Agreement "is very limited."
10 GATT and WTO panels have acknowledged the need for caution with 
respect to such complaints, noting that they "should remain an exceptional remedy."11 
Adjudicative bodies have also noted that "[t]he reason for this caution is straightforward. Members 
negotiate the rules that they agree to follow and only exceptionally would expect to be challenged 
for actions not in contravention of those rules."12  
                                               
7 Report of the Working Party on Australian Subsidy on Ammonium Sulphate, adopted on 3 April 1950, 
BISD II/188; Panel Report on Treatment by Germany of Imports of  Sardines ("Germany - Sardines"), G/26, 
adopted on 31 October 1952, BISD 1S/53; Uruguayan Recourse, adopted on 16 November 1962, BISD 
11S/95; Panel Report on EC - Tariff Treatment on Imports of Citrus  Products from Certain Countries in the 
Mediterranean Region ("EC - Citrus Products"), GATT document L/5576, dated 7 February 1985 (unadopted); 
Panel Report on EEC - Production Aids Granted on Canned Peac hes, Canned Pears, Canned Fruit Cocktail and 
Dried Grapes ("EEC - Canned Fruit"), GATT document L/5778, dated 20 February 1985 (unadopted); Japan - 
Semi-conductors, adopted on  4 May 1988, BISD 35S/116; EEC - Oilseeds, adopted on 25 January 1990, BISD 
37S/86; United States - Agricultural Waiver, adopted on 7 November 1990, BISD 37S/228. 
8 United States – Standards for Reformulated and Conventional Gasoline , panel and Appellate Body 
Reports adopted 20 May 1996, DS 2; EC – Measures Concerning Meat and Meat Products (Hormones) , panel 
and Appellate Body reports adopted 16 January 1998, DS43; Japan – Measures Affecting Consumer 
Photographic Film and Paper , panel report adopted 22 April 1998, DS 44; Korea – Measures Affecting 
Government Procurement , panel report adopted 19 June 2000, DS 163; EC – Measures Affecting Asbestos and 
Product Contain Asbestos , panel and Appellate Body reports adopted 5 April 2001, DS 135; United States – 
Continued Dumping and Subsidy Offset Act of 2000 , panel and Appellate Body reports adopted on 
16 January 2003, DS 234; China – Certain Measures Affecting Imports of Automobile Parts, panel and 
Appellate Body reports adopted on 12 January 2009, DS 339; EC – Measures Prohibiting the Importation and 
Marketing of Seal Products , Appellate Body circulated on 22 May 2014, DS 400. 
9 United States – Section 211 Omnibus Appropriations Act of 1998 , panel Report, circulated 6 August 
2001,  2 adopted January 2002, DS176/2 at 9.2 (the panel held that “there is nullification or impairment of the 
benefits accruing to the European Comm unities under the TRIPS Agreement,” and India — Patent Protection for 
Pharmaceutical and Agricu ltural Chemical Products  panel (paragraphs 7.18 – 7.22 and footnote 81) and 
Appellate Body Reports (paragraph 36 – 41) adopted 16 January 1998, DS 50. 
10 IP/C/W/194, p. 3. 
11 EC – Asbestos , para. 186. 
12 Panel Report, Japan – Measures Affecting Consumer Photographic Film  and Paper (“Japan – Film”) , 
WT/DS44/R, adopted 22 April 1998, para. 10.36. IP/C/W/599 
 
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  3.3.  Nonetheless, even cases noting the limited circumstances for pursuing a non-violation claim 
recognize that "the non-violation remedy is an important and accepted tool of WTO/GATT dispute 
settlement."13 Thus, non-violation is not intended as a method of reducing the certainty of an 
agreement, but rather in providing an "exception al remedy" in certain circumstances to ensure 
that benefits accruing under the relevant WTO agreement are not nullified or impaired by a 
measure of another WTO Member.  
3.4.  Non-violation complaints "discourage actions that evade obligations without directly violating 
them."14 The purpose of including non-violation complaints under Article XXIII:1(b) is "to protect 
the balance of concessions under GATT by provid ing a means to redress government actions not 
otherwise regulated by GATT rules that nonetheless nullify or impair a Member's legitimate expectations of benefits from tariff negotiations."
15 The basic premise of non-violation remedies is 
that "Members should not take actions, even thos e consistent with the letter of the treaty, which 
might serve to undermine the reasonable expectatio ns of negotiating partners," not just in the 
context of tariff negotiations but in other contexts as well.16  
3.5.  Although this purpose is somewhat similar to the principle of international law under pacta 
sunt servanda , described in Article 26 of the Vienna Convention as meaning that "[e]very treaty in 
force is binding upon the parties to it and must be performed by them in good faith," the 
"non-violation doctrine goes further than just respect for the object and purpose of the treaty" 
expressed under principles of international law.17 Under the non-violation doctrine, there must be 
respect for "actual provisions (i.e., concessions) as far as their material effect on competitive 
opportunities."18 This is an "extension of the good faith requirement."19 Therefore, even though 
non-violation remedies are rarely applied, they nonetheless have "an important role – that of 
protecting the reasonable expectations of competitive opportunities through negotiated concessions."
20 
3.2  Existing Template: Three Elements, Rea sonably Anticipated, Case-by-Case Analysis 
3.6.  In Japan – Measures Affecting Consumer Photographic Film and Paper  (Japan – Film ), the 
panel identified three required elements of a non-violation complaint: 
(1) application of a measure by a WTO Member;  
 (2) a benefit accruing under the relevant agreement; and   
(3) nullification or impairment of the benefit as the result of the application of the measure.
21 
 3.7.  The panel's analysis of these elements underscores the link between the legitimacy of an 
expected benefit and whether the measure was reasonably anticipated. According to the panel: 
In order for expectations of a benefit to be legitimate, the challenged measures 
must not have been reasonably anticipated at the time the tariff concession was 
negotiated. If the measures were anticipated, a Member could not have had a 
legitimate expectation of improved market access to the extent of the impairment caused by these measures.
22 
 
                                               
13 Japan – Film , para. 10.36. 
14 IP/C/W/194, p. 4. 
15 Japan – Film , para. 10.50.  See also Panel, EEC – Oilseeds I, para. 144 (“The idea underlying [the 
provisions of Article XXIII:1(b)] is that the improved competitive opportunities that can legitimately be expected from a tariff concession ca n be frustrated not only by meas ures proscribed by the General 
Agreement, but also by measures consistent with that Agreement.”). 
16 Korea – Procurement , para. 7.93. 
17 Korea – Procurement , para. 7.95. 
18 Korea – Procurement , para. 7.95.  See also  Japan – Film , para. 10.82 (equating “nullification or 
impairment” with “upsetting the competitive relationship” between domestic and imported products). 
19 Korea – Procurement , para. 7.95. 
20 Korea – Procurement , para. 7.98. 
21 Japan – Film , para. 10.41. 
22 Japan – Film , para. 10.76. IP/C/W/599 
 
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  3.8.  Relying on the EEC – Oilseeds  report, the panel in Japan – Film  further clarified that "we do 
not believe that it would be appropriate to charge the United States with having reasonably anticipated all GATT-consistent measures." Rather, the panel reasoned that reasonable anticipation needs to be addressed on a case-by-case basis.
23 
3.3  Scope of Non-Violation Complaints  Not Limited To Tariff Concessions 
3.9.  The availability of a non-violation complaint is not limited in terms of the type of measure 
that may be challenged. In EC – Asbestos , for example, the Appellate Body rejected the European 
Communities' argument that the principle could only  be applied to "commercial measures," noting 
that "the text [of Article XXIII:1(b)] does not distinguish between, or exclude, certain types of measures" from its application.
24 GATT Article XXIII:1(b) is also not limited to tariff benefits.25  
3.10.  In Korea – Procurement, the panel recognized the difference between "traditional" 
non-violation complaints based upon concessions and "non-traditional" non-violation complaints 
based upon negotiations under the WTO Agreement on Government Procurement. In that dispute, 
the panel provided for greater flexibility in the required elements outlined above and adopted a 
slightly different test to apply non-violation complaints in the context of government procurement 
negotiation rather than pursuant to a concession. The panel assessed four elements of a non-violation dispute:  
(1)  there was an agreed concession on entities;  
 (2)  resulting from that there was a reasonable expectation of enjoying competitive 
bidding opportunities;  
 
(3)  an action which does not violate GPA rules is taken by the Member that made the 
concession, including the concessions on entities; and  
 
(4)  resulting from that, the expected competitive bidding opportunities are not available 
and the benefits of the concession have been nullified and impaired.
26  
 
3.11.  Because the concern has been raised that "a 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," the adoption of these modified elements demonstrates 
the flexibility of such elements to adapt to different contexts.
27  
4  ISSUES OF CONCERN TO OTHER MEMBERS 4.1.  Some WTO Members have raised questions regarding the application of non-violation 
complaints to the TRIPS Agreement. These questions are addressed below. 
4.1  Non-Violation Complaints are Unnecessary Because the TRIPS Agreement is Not 
Designed to Protect Market Access 
4.2.  Some Members have expressed their view that, unlike other WTO agreements, the TRIPS 
Agreement is a sui-generis  agreement which establishes minimum standards of intellectual 
property protection rather than protecting market access.
28 Some Members have also argued that 
even if the Agreement is a market access agreem ent, it is of a "distinctive character and, 
therefore, additional considerations are more or  less needed to analyse the application of non-
violation under it."29 Another view is that the TRIPS Agreement is not designed to protect market 
                                               
23 Japan – Film , paras. 10.79. 
24 EC – Asbestos , paras. 188-189. 
25 See IP/C/W/349/Rev.2, para. 12 (citing 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 Korea – Procurement , para. 7.103. 
27 IP/C/W/349/Rev.2, para. 68. 
28 IP/C/W/385, p. 1. 
29 IP/C/W/349/Rev.2, para. 27. IP/C/W/599 
 
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  access but "to establish standards of IP protection, which, if abused, may even undermine market 
access."30 
4.3.   It is the view of the United States that  the TRIPS Agreement is a market access agreement. 
As stated in its preamble, the TRIPS Agreement is intended "to reduce distortions and 
impediments to international trade … and to ensure that measures and procedures to enforce 
intellectual property rights do not themselves become barriers to legitimate trade."31 The 
Agreement also helps to reduce market distortions that existed prior to its negotiation by 
establishing minimum standards on the scope of trade-related intellectual property rights.  
4.4.  While it is true that the standards and proc edures established in the agreement are in part to 
protect the enjoyment of private rights, this type of protection is not unique to the TRIPS Agreement – the Agreement on Technical Barriers to Trade and the Agreement on Sanitary and 
Phytosanitary Measures, for example, also esta blish minimum requirements that governments 
must meet before imposing limitations on goods. Furthermore, it is essential to note that intellectual property rights have the potential to impact market access. For example, in the context 
of an anticipated increase in market access resulting from a negotiated tariff reduction, such 
reductions for a product may not be realized if others could market identical products freely in spite of the existence of a patent claiming that product or a trademark associated with these 
products. 
4.5.  The United States is also of the view that there is no substantial difference between GATT, 
GATS and the TRIPS Agreement as they are all pa rt of the overall package of the WTO System. 
The perception of differences between the agre ements exists because the TRIPS Agreement's 
rights are granted to persons rather than applied to goods. However, like any other WTO 
Agreement, the rules set forth in the TRIPS Agreement determine the way in which a WTO 
Member's goods and services should be treated in the territories of other members, making the 
agreements more alike than different in their application and purpose.
32 
4.6.  Notably, WTO adjudicative bodies have also found that non-violation complaints are not 
limited to tariff concessions and commercial benefits. For example, in EC – Asbestos , the Appellate 
Body rejected the argument of the responding party in that dispute that it is possible to have 
"legitimate expectations" only in connection with a purely "commercial measure". The Appellate Body stated that "the text [of Article XXIII:1(b)] does not distinguish between, or exclude, certain types of measures" and that such distinctions woul d be "very difficult in practice". Likewise, as 
explained above, the panel in Korea – Procurement, distinguished between "traditional" 
non-violation complaints based upon concessions and "non-traditional" non-violation complaints based upon negotiations under the WTO Agreement on Government Procurement.  
4.7.  In addition, according to a note prepared by the GATT Secretariat, non-violation and situation 
complaints originated out of an effort "to protect agreed tariff reductions as well as the reciprocal 'balance of concessions' from being undermined  by non-tariff barriers or by other government 
measures (e.g., outside of the trade sphere)."
33 
4.2  Non-violation Complaints are Unnecessa ry to Protect any Balance of Rights and 
Obligations Inherent in the TRIPS Agreement 
4.8.  Some Members have expressed their concerns that non-violation and situation complaints are 
unnecessary to protect any balance of rights because WTO Members are not obliged to implement 
more extensive protections under the TRIPS Agreement and because the Agreement already accurately reflects such obligations.
34 
4.9.  The United States disagrees with the view that non-violation complaints would be at odds 
with the balance of rights and obligations in the TRIPS Agreement. The application of non-violation complaints was clearly envisioned by the drafters  of the TRIPS Agreement, as evidenced by the 
language of Articles 64.1 and 64.2 which explicitly state that, after five years, complaints under 
                                               
30 IP/C/M/75/Add.1 at 126. 
31 Preamble to the TRIPS Agreement, first paragraph. 
32 IP/C/W/349/Rev.2, para. 41. 
33 14 July 1989, MTN/GNG/NG13/W/31. 
34 IP/C/W/349/Rev.2, para. 13.   IP/C/W/599 
 
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  Article XXIII:1(b) and (c) of GATT would be availa ble under the Agreement. Therefore, the United 
States is of the view that these drafters intended for non-violation complaints to constitute an additional obligation to Members that is not expressed elsewhere in the provisions of the 
Agreement. 
4.3  Permitting Non-Violation Complain ts will Introduce Incoherence Among WTO 
Agreements and Upset the Balance by Elevatin g Private Rights over the Interests of the 
Users of Intellectual Property 
4.10.  Some Members have raised concerns that allowing non-violation remedies under the TRIPS 
Agreement would "unsettle [the] delicate balance of rights and obligations" provided for under the agreement and elevate the interests of private rights  over the interests of public policy concerns. 
These members are concerned that by allowing non-violation complaints, Members' previously 
WTO consistent measures such as taxes and advertising requirements will be subject to 
challenge.
35 
4.11.  The United States does not believe that the availability of non-violation measures will raise 
these systemic concerns. As described in preceding sections, WTO adjudicatory bodies will 
continue to be bound by Article 3.2 of the DSU, which clearly states that "[r]ecommendations and rulings of the Dispute Settlement Body cannot add or diminish the rights and obligations provided 
in the covered agreements." Additionally, Article 3.5 of the DSU provides that all solutions to 
matters raised must also be consistent with those agreements. Even absent these express provisions, however, it is unlikely that a panel would ever determine that something a WTO Member had agreed to under one part of the Marra kesh Agreement would nullify or impair benefits 
agreed to under another part of the single undertaking.  
4.12.  Furthermore, past GATT and the WTO ruling s provide sufficient guidance on the scope of 
such complaints, which ensure that the scope of any non-violation complaint would have to be 
precisely drawn and clearly supported with detailed justification. Finally, as explained above, 
non-violation complaints are an "exceptional" remedy. The United States considers it unlikely that a limited remedy such as a non-violation complaint would have the destabilizing impact that 
concerns some Members.  
4.4  Application of Non-Violation Complaints  will Undermine Regulatory Authority and 
Infringe Sovereign Rights Inhe rent in the TRIPS Agreement 
4.13.  Some Members have suggested that the availa bility of non-violation complaints will limit the 
ability and flexibility for states to secure objectives  relating to public health, nutrition, the transfer 
of technology and other issues of public interest. They also suggest that their sovereign rights will be limited by exposing to challenge any measure that affects intellectual property that could not 
have been foreseen at the time of the Uruguay Round.
36  
4.14.  The United States is of the view that the av ailability of non-violation complaints will protect 
Members from intentional evasions of obligations under the TRIPS Agreement while preserving the 
ability of any Member to implement legitimate social, economic development, health, 
environmental and cultural policies. Non-violation complaints will only be successful if they could not have been foreseen when the Uruguay Round negotiations were underway. Because there are a number of ways to implement social and cultural policy goals, a Member may take this element 
of non-violation complaints into consideration when crafting measures to protect these goals.  
4.15.  In this regard, the United States also notes the following considerations conveyed by 
Switzerland at the February 2014, meeting of the TRIPS Council: 
A number of delegations in their interventions today referred to their concern as 
to the potential impact of the application of non-violation complaints on their rights and obligations under TRIPS and more particularly the flexibilities 
contained in the Agreement. Let me be clear on this important point: It is our 
firm view that a non-violation complaint cannot be brought against another 
                                               
35 IP/C/W/385, p. 2. 
36 IP/C/W/385, p. 2. IP/C/W/599 
 
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  Member for utilizing a flexibility foreseen in the TRIPS Agreement. One of the 
necessary conditions that the complaining party must demonstrate is that the offending measure could not have been foreseen. That a Member may make use of a flexibility provided in the TRIPS Agreement is, just as any other right under 
the TRIPS Agreement, foreseeable by other Members. After all, they were 
written into the Agreement, agreed by all Members and, as far as pertaining to public health, also confirmed in the Doha Ministerial Declaration on the TRIPS 
Agreement and Public Health of 14/11/2001.
37 
 4.5  Rights and Obligations in the TRIPS Agreement are Best Performed through Good 
Faith Application of its Provisions 
4.16.  Some Members have argued that rights and obligations arising under the TRIPS Agreement 
are better performed in accordance with established principles of international law rather than under the non-violation principle. These Members no te their concern that the application of such 
provisions would not be as "legally imprecise" as the notion of non-violation complaints.
38 
4.17.  The United States disagrees that the good  faith application of the Agreement's provisions 
will in all circumstances fully protect Members in the same way that the availability of non-
violation complaints will. The United States notes the discussion of the application of international 
law as put forward in Korea – Procurement . In that dispute, the panel noted that the "non-
violation doctrine goes further than just respect for the object and purpose of the treaty" as protected under the principle of pacta sunt servanda  principle under international law.
39 That 
dispute also noted that the non-violation provision is needed because, while most of the time 
actions taken by Members will be consistent with both the letter and the spirit of the treaty, "upon 
occasion, it may be the case that some actions, while permissible under one set of rules (e.g., the 
Agreement on Subsidies and Countervailing Measures is a commonly referenced example of rules 
in this regard), are not consistent with the spirit of other commitments."40 
4.6  There is Insufficient Guidance on Remedies and Dispute Settlement for Non-
Violation Complaints under the TRIPS Agreement 
4.18.  Some Members believe there is "insufficient guidance" in Article 26 of the DSU and GATT 
dispute practice for panels and the Appellate Body  to apply non-violation and situation complaints 
in the context of the TRIPS Agreement.41 Others have found sufficient guidance and addressed 
non-violation as part of a complaint.42 
4.19.  The United States does not believe that questions regarding the implementation of a 
provision of the TRIPS Agreement should serve as a barrier to such implementation. Article 64 is 
no different than any TRIPS Agreement provision on to the extent that no TRIPS Agreement 
provisions is so detailed as to anticipate all possible variations of implementation precisely. Such clairvoyance is not demanded of other TRIPS Agr eement provisions. In fact, any provision of any 
WTO agreement is similarly situated – each agreement lays out a series of rights and obligations 
agreed by WTO Members. Where WTO Members n eed clarification regarding such rights and 
obligations, they have recourse to the WTO panel and Appellate Body system. 
4.20.  It is the role of the dispute settlement body  to preserve those rights and obligations and to 
clarify the provisions of the covered agreements. As affirmed in DSU Article 3.2, the WTO dispute 
settlement system "is a central element in providin g security and predictability to the multilateral 
trading system." Critically, however, the dispute settlement system cannot add to or diminish 
those rights and obligations.  
4.21.  It is within these well-established confines that GATT panels and the Appellate Body have 
already conducted significant analysis of non-violation provisions of the GATT 1994, which provides 
                                               
37 IP/C/M/75/Add.1, para. 169. 
38 IP/C/W/385, p. 1. 
39 Panel Report, Korea – Measures Affectin g Government Procurement (“Korea – Procurement”) , 
WT/DS163/R, adopted 19 June 2000, para. 7.95. 
40 Korea – Procurement , para. 7.99. 
41 IP/C/W/385, pp. 2-3. 
42 US — Section 211 Appropriations Act , supra at 9. IP/C/W/599 
 
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  appropriate guidance on the applicability and use of non-violation complaints. This guidance, 
combined with the additional guidance provided by panels and the Appellate Body in past GATT and WTO disputes, provides WTO Members with an appropriate scope and set of modalities applicable to non-violation complaints also under the TRIPS Agreement. As explained above, these 
include a set of three required elements, which ha ve been elaborated and refined through dispute 
settlement and which include an assessment of reasonable anticipation and a case-by-case determination.  
4.22.  Ultimately, the questions regarding the impl ementation of Article 64 have to a great extent 
been answered, in part by the text of the rele vant covered agreements and in part by the GATT 
and WTO dispute settlement system. Where additional questions remain, dispute settlement continues to be the mechanism agreed by WTO Members to further clarify provisions of the 
covered agreement, including Article 64. Members endeavoring to divine such answers in the 
abstract divorced from a case-by-case analysis in the dispute settlement system is at odds with the agreed rules of the road of the WTO. 
5  CONCLUSION 
5.1.  Non-violation complaints are fully appropri ate in the context of the TRIPS Agreement, and 
have have long been part of the WTO and the GATT. Non-violation complaints serve an interest all 
WTO Members share, which is to assist Members in protecting against measures that nullified or 
impaired concessions. Non-violation complaints were part of the balance of rights and obligations in the TRIPS Agreement. TRIPS Article 64 clearly pr ovides that the provisions of non-violation and 
situation complaints in GATT Article XXIII would apply after a period of five years following the 
entry into force of the WTO Agreement, but also unambiguously provides that any extension of the 
five-year period must be agreed by consensus. The time has come to allow the moratorium on non-violation complaints to expire. 
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