Reshaping the TRIPs Agreement Concerning public health: Two critical issues

Journal of World Trade

Volumn 37, Issue 1, 2003, Pages 163-197

  Sun, Haochen ^a  

^a ZHEJIANG UNIVERSITY   (China)

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EID: 65749092274     PISSN: 10116702     EISSN: None     Source Type: Journal    
DOI: 10.54648/trad2003014     Document Type: Article

References (179)

1. See WTO Agreements and Public Health, a joint study by the WHO and the WTO Secretariat (2002), p. 23;
2. Carlos M. Correa, Implementing National Public Health Policies in the Framework of WTO Agreements, 34 J.W.T. 5 (October 2000), 89. Normally, "public health" refers to all organized measures (whether public or private) to prevent disease, promote health, and prolong life of the population as a whole.
3. J.H. Reichman, Taking the Medicine, with Angst: An Economist's View of the TRIPs Agreement, 4 J.I.E.L. 4 (2001), 795.
4. Some relevant international organizations and experts have been engaged in the research about the impact of implementing the TRIPs Agreement on the developing countries. See UNCTAD, The TRIPs and Developing Countries (New York and Geneva: UNCTAD, 1996);
5. UNCTAD, Training Tools on the TRIPs Agreement: The Developing Countries' Perspective (Geneva: UNCTAD, 2002);
6. Keith E. Maskus, Intellectual Property Rights in the Global Economy (Washington, D.C.: Institute for International Economics, 2000);
7. Carlos M. Correa, Intellectual Property Rights, The WTO and Developing Countries: The TRIPs Agreement and Policy Options (London and New York: Zed Books, 2000);
8. Jayashree Watal, Intellectual Property Rights in the WTO and Developing Countries (Oxford: Oxford University Press, 2001);
9. W. Lesser, The Effects of TRIPs-Mandated Intellectual Property Rights on Economic Activities in Developing Countries, WIPO Research Paper (2001).
10. Ambassador B.G. Chidyausiku, Zimbabwe, on the Doha Declaration. Quoted from Implementation of the Doha Declaration on the TRIPs Agreement and Public Health: Technical Assistance - How to Get It Right, conference report, 28 March 2002, International Conference Centre of Geneva (CICG).
11. See Tshimanga Kongolo, Public Interest versus Pharmaceutical Industry's Monopoly in South Africa, 4 J. World Intellectual Property (2001), 626-627.
12. See Patent Protection and Access to HIV/AIDS Pharmaceuticals in Sub-Saharan Africa, WIPO Research Paper (2000), pp. 4-6.
13. See also UNAIDS, Report on Global HIV/AIDS Epidemic 2002, p. 8.
14. Ibid., UNAIDS Report, Annex 1.
15. See Statement of the Joint United Nations Programme on HIV/AIDS (UNAIDS) at the Third WTO Ministerial Conference, Seattle, 30 November-3 December 1999. High prices are not the only reason behind the limited access to HIV treatments. Other reasons include limitations in infrastructure for diagnosis and treatment, lack of epidemiological data on the patterns of opportunistic diseases, gaps in the supply system and poor financing.
16. See UNICEF/UNAIDS/WHO/EDM/MSF project, Selected drugs used in the care of people living with HIV: sources and prices (October 2000), p. 1.
17. Pharmaceutical Company Lawsuit against the Government of South Africa, Case No. 4183/98 of 18 February 1998, available at .
18. Kongolo, as 5 above, at p. 620.
19. Details of this workshop are available at .
20. WHA54.10.
21. WHA54.11.
22. J.H. Reichman and David Lange, Bargaining around the TRIPs Agreement: The Case for Ongoing Public-Private Initiatives to Facilitate Worldwide Intellectual Property Transactions, 9 Duke J. Comparative Int'l L. (1998), 18.
23. For detailed negotiating history of the TRIPs Agreement, see Daniel Gervais, The TRIPs Agreement: Drafting History and Analysis (London: Sweet & Maxwell, 1998);
24. John Croome, Reshaping the World Trading System: A History of Uruguay Round (Dordrecht: Kluwer Law International, 1999).
25. See Frederick M. Abbott, The TRIPs Agreement, Access to Medicines, and the WTO Doha Ministerial Conference, 5 J. World Intellectual Property 1 (2002), 15.
26. Article 65.4 TRIPs Agreement.
27. Article 70.8 and 70.9 TRIPs Agreement.
28. Article 31(f) TRIPs Agreement.
29. UN Commission in Human Rights: Intellectual Property and Human Rights, 2000, E/CN/.4/Sub.2/2000/7, para. 2.
30. See E.-U. Petersmann, The WTO Constitution and Human Rights, 3 J.I.E.L. (2000), 19-25;
31. E.-U. Petersmann, From "Negative" To "Positive" Integration In The WTO: Time For "Mainstreaming Human Rights" Into WTO Law?, 37 Common Market L. Rev. (2000), 1370-1377;
32. E.-U. Petersmann, Human Rights and International Economic Law in the 21st Century: The Need to Clarify their Interrelationships, 4 J.I.E.L. 1 (2001), 3-39;
33. Hoe Lim, Trade and Human Rights: What's at Issue?, 35 J.W.T. 3 (June 2001), 275-300;
34. UN Commission on Human Rights, The Impact of the Agreement on Trade-Related Aspects of Intellectual Property Rights on Human Rights, Report of the High Commissioner, 27 June 2001, E/CN.4/Sub.2/ 2001/13
35. UN Commission on Human Rights, Globalization and its impact on the full enjoyment of human rights, progress report submitted by J. Oloka-Onyango and Deepika Udagama, in accordance with Sub-Commission resolution 1999/8 and Commission on Human Rights decision 2000/102 (2 August 2001), E/CN.4/Sub.2/2001/10.
36. The negotiating history of the Doha Declaration, see Frederick M. Abbott, The Doha Declaration on The TRIPs Agreement and Public Health: Lightening a Dark Corner in WTO, 5 J.I.E.L. (2002), 480-489.
37. Statement WHO/17, 9 November 2001.
38. Declaration on the TRIPs Agreement and Public Health, WTO Ministerial Conference, Forth Session Doha (20 November 2001), WT/MIN(01)/DEC/2, para. 3.
39. Ibid., para. 4.
40. Ibid., para. 5 (a).
41. Ibid., para. 5 (b).
42. Ibid., para. 5 (c).
43. Ibid., para. 5 (d).
44. Ibid., para. 7. The TRIPs Council has made the decision that least-developed country Members will not be obliged, with respect to pharmaceutical products, to implement or apply Sections 5 and 7 of Part II of the TRIPs Agreement or to enforce rights provided for under these Sections until 1 January 2016.
45. See Extension of the Transition Period under Article 66.1 of the TRIPs Agreement for Least-developed Country Members for Certain Obligations with respect to Pharmaceutical Products, Decision of the TRIPs Council of 27 June 2002, IP/C/25, para. 1.
46. Ibid., para. 7. Pursuant to Decision on Implementation-Related Issues and Concerns, the provisions of Article 66.2 of the TRIPs Agreement are mandatory. The TRIPs Council shall put in place a mechanism for ensuring the monitoring and full implementation of the obligations in question. To this end, developed-country Members shall submit prior to the end of 2002 detailed reports on the functioning in practice of the incentives provided to their enterprises for the transfer of technology in pursuance of their commitments under Article 66.2. These submissions shall be subject to a review in the TRIPs Council and information shall be updated by Members annually.
47. See Implementation-Related Issues and Concerns, Decision of 14 November 2001, WT/MIN(01)/17, para, 11.2.
48. Ibid., para. 5(e).
49. Implementation-Related Issues and Concerns, Decision of 14 November 2001, WT/MIN(01)/17, para. 11.1.
50. See Council approves LDC decision with additional waiver, WTO Press Release.
51. Carlos M. Correa, Intellectual Property Rights and the use of Compulsory Licenses: Options for Developing Countries, South Centre, Trade-Related Agenda, Development and Equity Working Paper 5, p. 24.
52. Professor Correa also empathizes that countries should examine the potential negative impact of compulsory licensing, as with other measures limiting patentees' rights. The consequences include the possibility of discouraging foreign investment, transfer of technology, and research, including research into local diseases.
53. See Carlos M. Correa, Integrating Public Health concerns into Patent Legislation (Geneva: South Centre Books, 2000), pp. 91-100.
54. Frederick M. Abbott, Compulsory Licensing for Public Health Needs: The TRIPs Agenda at the WTO after the Doha Declaration on Public Health, Occasional Paper 9 (Geneva: Quaker United Nations Office, 2002), p. 17.
55. Correa, as note 3 above, at p. 93;
56. Arvind Subramanian, The AIDS Crisis, Differential Pricing of Drugs, and the TRIPs Agreement - Two Proposals, 4 J. World Intellectual Property (2001), 323-336;
57. Frederick M. Abbott, The TRIPs Agreement, Access to Medicines, and the WTO Doha Ministerial Conference, 5 J. World Intellectual Property (2002), 23-29.
58. See Supachai disappointed over governments' failure to agree on health and development issues, WTO NEWS: 2002 PRESS RELEASES, 20 December 2002, Press/329.
59. The deletion or revision of Article 31(f) is advocated by some developing country Members. See Joint Communication from the African Group in the WTO, Proposals on Paragraph 6 of the Doha Declaration on the TRIPs Agreement and Public Health, 24 June 2002, IP/C/W/351;
60. The EU favors the specific amendment to Article 31(f). See Communication from the European Communities and their member States, Concept Paper Relating to Paragraph 6 of the Doha Declaration of the TRIPs Agreement and Public Health, 4 March 2002, IP/C/W/339;
61. Communication from the European Communities and their member States, Paragraph 6 of the Doha Declaration of the TRIPs Agreement and Public Health, 20 June 2002, IP/C/W/352.
62. See Second Communication from the United States, Paragraph 6 of the Doha Declaration of the TRIPs Agreement and Public Health, 9 July 2002, IP/C/W/358.
63. See also Jacques H.J. Bourgeois and Thaddeus J. Burns, Implementing Paragraph 6 of the Doha Declaration on TRIPs and Public Health - The Waiver Solution, Journal of World Intellectual Property, Vol. 5, pp. 835-864.
64. See Communication from the United States, Moratorium to Address Needs of Developing and Least Developed Members with No or Insufficient Manufacturing Capacities in the Pharmaceutical Sector, 14 January 2003, IP/C/W/396.
65. Communication from the United Arab Emirates, Paragraph 6 of the Doha Declaration of the TRIPs Agreement and Public Health, 24 June 2002, IP/C/W/354;
66. Bolivia, Brazil, Cuba, China, Dominican Republic, Ecuador, India, Indonesia, Pakistan, Peru, Sri Lanka, Thailand and Venezuela, Paragraph 6 of the Doha Declaration of the TRIPs Agreement and Public Health, 24 June 2002, IP/C/W/355.
67. The first three options can be categorized as "Article 31-based Solution".
68. See Ibid. if the General Council were, as a result of the annual review, to decide to modify or terminate the multi-year waiver under review, or extend it beyond the term set out in the waiver itself, it would need to take a decision to that effect in accordance with Article IX of the WTO Agreement. Such a decision would normally require consensus. However, to date, no proposals have been made regarding the extension, modification or termination of multi-year waivers during their review.
69. See Sec. 122, URAA.
70. Ironically, it is the developed countries that have been the most active users of compulsory licensing, not only in the pharmaceutical field, for a number of purposes, including importantly in anti-trust cases in the US. Canada used compulsory licensing extensively in the pharmaceutical field from 1969 until the late 1980s. This resulted in prices of licensed drugs being 47% lower than in the US in 1982. See F.M. Scherer & Jayashree Watal, Post-TRIPs options for access to patented medicines in developing countries, Commission on Macroeconomics and Health Background Paper, 2001. More recently in 2001, the US Secretary for Health and Human Services (HHS), publicly envisaged the possibility of procuring generic equivalents prior to his negotiations with Bayer (the patentee) on the purchase of the drug Cipro to deal with the consequences of anthrax attacks although, in the end, agreement was reached with Bayer.
71. See Frederick M. Abbott, WTO TRIPs Agreement and Its Implications for Access to Medicines in Developing Countries, Study Paper 2a of the Commission on Intellectual Property Rights (CIRP), p. 14;
72. See also Final Report of the UK Commission on Intellectual Property Rights (CIPR), Integrating Intellectual Property Rights and Development Policy, 2002, pp. 49-50.
73. See Article IX: 2 of the WTO Agreement.
74. Section IV of this article explains it is the exporting Member rather than the importing Member that should provide adequate remuneration to patent owners.
75. As regards waivers granted under GATT 1994, in the Understanding in respect of Waivers of Obligations under the General Agreement on Tariffs and Trade 1994. Its paragraph 3 reads as follows:
76. "Any Member considering that a benefit accruing to it under GATT 1994 is being nullified or impaired as a result of: (a) the failure of the Member to whom a waiver was granted to observe the terms or conditions of the waiver, or (b) the application of a measure consistent with the terms and conditions of the waiver may invoke the provisions of Article XXIII of GATT 1994 as elaborated and applied by the Dispute Settlement Understanding." Therefore, the concept reflected in paragraph 3(b) of this Understanding has to be considered as a reference to non-violation under Article XXIII:1(b) and (c).
77. See Articles 64.2 and 64.3 of the TRIPs Agreement. Press to conclude the Uruguay Round, negotiators simply placed a moratorium on such claims in order to allow further investigation. In the result, the above two paragraphs limits the availability of non-violation complaints until 2001. On the Doha Ministerial Conference, the TRIPs Council was instructed to continue its examination of the scope and modalities for non-violation complaints it is agreed that, in the meantime, Members will not initiate such complaints under the TRIPs Agreement.
78. See Implementation-Related Issues and Concerns, Decision of 14 November 2001, WT/MIN(01)/17, para. 11.1.
79. Amendment 196, ARTICLE 1, POINT 7, Article 10, paragraph 4, subparagraph 1 a (new) (Directive 2001/83/EC).
80. Oliver Cattneo, The Interpretation of the TRIPs Agreement - Considerations for the WTO Panels and Appellate Body, 3 J. World Intellectual Property (2000), 679.
81. Frederick M. Abbott, WTO Dispute Settlement and Agreement on Trade-Related Aspects of Intellectual Property Rights, in E.-U. Petersmann (ed.), International Trade Law and the GATT/WTO Dispute Settlement Systems (London: Kluwer Law International, 1997), p. 415.
82. Abbott, as note 34 above, at 27-28.
83. Dara Williams, Developing TRIPs Jurisprudence-The First Six Years and Beyond, 4 J. World Intellectual Property (2001), 191.
84. See Article 8.1 of the TRIPs Agreement. However, when formulating or amending their laws and regulations, Members should ensure that such measures are consistent with the provisions of the TRIPs Agreement.
85. See Paragraph 4 of the Doha Declaration.
86. See Ibid.
87. See para. 5(a) of the Doha Declaration.
88. See United States - Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R, adopted 20 May 1996, p. 17.
89. See also Appellate Body Report, Japan - Taxes on Alcoholic Beverages, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, 1 November 1996, p. 11;
90. Appellate Body Reports, India - Patents, para. 46;
91. European Communities - Customs Classification of Certain Computer Equipment, WT/DS62/AB/R, WT/DS67/AB/R, WT/DS68AB/R, 22 June 1998, para. 84;
92. United States - Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, 6 November 1998, para. 114;
93. see also James Cameron and Kevin R. Gray, Principles of International Law in the WTO Dispute Settlement Body, 50 International and Comparative Law Quarterly, 2001, pp. 254-256.
94. Article 9(2) of the Berne Convention stipulates, "It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author." When interpreting the limitations and exceptions in the Article 13 of the TRIPs Agreement, the Panels of US Copyright Act case and US Omnibus Appropriations Act case made references to this Article.
95. See India - Patent Protection for Pharmaceutical and Agricultural Chemical Products, WT/DS50/R, adopted on 5 May 1997, paras.1.4 -1.6;
96. Canada - Patent Protection of Pharmaceutical Products, WT/DS114/R, adopted on 17 March 2000, paras 7.1-7.3;
97. United States - Section 110(5) of the U.S. Copyright Act, 4 February 1999, WT/DS160/R, paras 6.43-6.45;
98. United States - Section 211 Omnibus Appropriations Act of 1998, WT/DS176/R, 6 August 2001, paras 1.1-1.3.
99. See the Preamble of the TRIPs Agreement.
100. See Ibid.
101. See Article 7 of the TRIPs Agreement.
102. Proposals on paragraph 6 of the Doha Declaration on the TRIPs Agreement and Public Health: Thematic Compilation, Note by the Secretariat, 1 July 2002, IP/C/W/363, p. 4.
103. Subramanian, as note 35 above, at 331.
104. Thomas Cottier and Krista Nadakavukaren Schefer, "Non-Violation Complaints in WTO/GATT Dispute Settlement: Past, Present and Future* in E.-U. Petersmann (ed.), International Trade Law and the GATT/WTO Dispute Settlement System (London: Kluwer Law International, 1997), pp. 149-151;
105. E.-U. Petersmann, The GATT/WTO Dispute Settlement System: International Law, International Organizations, and Dispute Settlement (London: Kluwer Law International, 1997), pp. 142-143.
106. See Robert E. Hudec, Enforcing International Trade Law: The Evolution of the Modern GATT Legal System (Salem, NH: Butterworth Legal, 1993), p. 7.
107. Non-violation complaints are used to settle the disputes (including the ones on intellectual property matters) in some regional organizations, such as the North American Free Trade Agreement (NAFTA).
108. Armin von Bogdandy, The Non-violation Procedure of Article XXIII: 2 of GATT: Its Operational Rationale, 26 J.W.T. 4 (August 1992), 110.
109. India - Patent Protection for Pharmaceutical and Agricultural Chemical Products, adopted on 19 December 1997, WT/DS50/AB/R, para. 41.
110. TRIPs Council, Non-Violation Complaints and The TRIPs Agreement, Note by the Secretariat, 28 January 1999, IP/C/W/124, para. 32.
111. Article 26.1(a) DSU. The failure to meet the burden of demonstrating actual nullification and impairment was decisive in a number of cases including non-violation claims, including Japan - Semiconductors, United States - 1955 Waiver, Japan - Film and Korea - Government procurement.
112. Article 26.1(c) DSU.
113. Japan - Measures Affecting Consumer Photographic Film and Paper, adopted on 22 April 1998, WT/DS44/R, para. 10.36.
114. Working Party Report, The Australian Subsidy on Ammonium Sulphate, adopted on 3 April 1950, BISD II/188;
115. Panel Report, Treatment of Germany of Imports of Sardines, adopted on 31 October 1952, BISD 1S/53;
116. and Panel Report, European Communities - Payments and Subsidies Paid to Processors and Producers of Oilseeds and Related Animal-Feed Proteins, adopted 25 January 1990, BISD 37S/86 and Report of the Members of the Original Oilseeds Panel, Follow-up on the Panel Report EEC - Payments and Subsidies Paid to Processors and Producers of Oilseeds and Related Animal Feed Proteins, DS28/R, dated 31 March 1992, BISD 39S/91.
117. Panel Report, European Community - Tariff Treatment on Imports of Citrus Products from Certain Countries in the Mediterranean Region, L/5776, not adopted and 1985 Panel Report, European Economic Community - Production Aids Granted on Canned Peaches, Canned Pears, Canned Fruit Cocktail and Dried Grapes, L/5778, not adopted.
118. Panel Report, Uruguay - Recourse to Article XXIII, adopted on 16 November 1962, BISD 11S/95;
119. Panel Report, Japan - Trade in Semiconductors, adopted on 24 May 1960, BISD 35S/116;
120. and Panel Report, United States - Restrictions on the Importation of Sugar and Sugar-containing Products Applied under the 1955 Waiver and under the headnote to the Schedule of Tariff Concessions, adopted on 7 November 1990, BISD 37S/228.
121. Japan - Measures Affecting Consumer Photographic Film and Paper, adopted on 22 April 1998, WT/DS44/R;
122. and Korea - Measures Affecting Government Procurement, adopted on 1 May 2000, WT/DS163/R.
123. See Article XXIII of General Agreement on Trade in Services (GATS).
124. MTN.TNC/W/FA.
125. TRIPs Council, Non-Violation Complaints and The TRIPs Agreement, Note by the Secretariat, 28 January 1999, IP/C/W/124, paras 13-14.
126. Ibid., para. 15.
127. Article 64.2 TRIPs Agreement.
128. Article 64.3 TRIPs Agreement.
129. See F. Roessler, "The Concept of Nullification and Impairment in the Legal System of the World Trade Organization", in E.-U. Petersmann (ed.), International Trade Law and the GATT/WTO Dispute Settlement Systems (London: Kluwer Law International, 1997), pp. 135-138.
130. See Sung-joon Cho, GATT Non-Violation Issues in the WTO Framework: Are they the Achilles' Heel of the Dispute Settlement Process?, 39 Harvard Int'l L. J. 2 (1998), 311-355.
131. See Gail E. Evans, A Preliminary Excursion into TRIPs and Non-Violation Complaints, 3 J. World Intellectual Property (2000), 867-888.
132. Communication from the United States, Scope and Modalities of under the TRIPs Agreement, 17 July 2000, IP/C/W/194.
133. Communication from Canada, Non-violation Nullification or Impairment under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), 10 February 1999, IP/C/W/127;
134. Proposal from Cuba, the Dominican Republic, Egypt, Indonesia, Malaysia and Pakistan, Non-violation Nullification or Impairment under the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs), 29 April 1999, IP/C/W/141;
135. Communication from Canada, the Czech Republic, the European Communities and their Member States, Hungary and Turkey, Non-violation Complaints under the TRIPs Agreement - Suggested Issues for Examination of Scope and Modalities under Article 64.3 of the TRIPs Agreement, 22 June 2000, IP/C/W/191;
136. Communication from Australia, Non-violation Complaints under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), 27 September 2000, IP/C/W/212. Communication from Canada, Further consideration of Non-violation Nullification or Impairment under the Agreement on Trade-Related Aspects of Intellectual Property Rights, 29 March 2001, IP/C/W/249.
137. Implementation-related Issues and Concerns, Decision of 14 November 2001, WT/MIN(01)/17, para. 11.1.
138. See Hudec, as note 68 above, at p. 7.
139. See Cho, as note 87 above, at 322-323.
140. EC - Tariff Treatment of Citrus Products from Certain Mediterranean Countries, adopted on 7 February 1985, L/5776, C/M/186.
141. These include: Japan - Measures Affecting Distribution Services, request for consultations by the United States, WT/DS45/1;
142. Brazil - Certain Automotive Investment Measures, requests for consultations by Japan and the United States, WT/DS51/1 and WT/DS52/1;
143. United States - The Cuban Liberty and Democratic Solidarity Act, request for establishment of a Panel by the European Communities, WT/ DS38/2;
144. United States - Import Prohibition of Certain Shrimp and Shrimp Products, request for consultations by the Philippines, WT/DS61/1;
145. European Communities - Measures Affecting Butter Products, request for consultations and establishment of a Panel by New Zealand, WT/DS72/ 1-2;
146. Brazil - Certain Measures Affecting Trade and Investment in the Automotive Sector, requests for consultations by the United States and the European Communities, WT/DS65/1 and WT/DS81/1;
147. India - Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products, request for consultations by New Zealand, WT/DS93/1;
148. European Communities - Measures Affecting Asbestos and Products Containing Asbestos, request for establishment of a panel by Canada, WT/DS135/3;
149. European Communities - Anti-dumping Investigations regarding Unbleached Cotton Fabrics from India, request for consultations by India, WT/DS140/1;
150. and United States - Certain Measures Affecting the Import of Cattle, Swine and Grain from Canada, request for consultations by Canada, WT/ DS144/1.
151. Korea - Measures Affecting Government Procurement, adopted on 1 May 2000, WT/DS163/R.
152. Adrian T.L. Chua, Reasonable Expectations and Non-violation Complaints in GATT/WTO Jurisprudence, 32 J.W.T. 2 (April 1998), 39.
153. Japan - Film, WT/DS44/R, para. 10.49.
154. Ibid., para. 10.56. The Panel in Japan - Film, referred to the Panel Report, Japan - Semiconductors, BISD 35S/116, and a 1989 Panel Report, EC - Restrictions on Imports of Dessert Apples (Complaint by Chile), BISD 36S/93.
155. See Cho, as note 87 above, at 316-320.
156. The principle of pacta sunt servanda is expressed in Article 26 of the Vienna Convention in the following manner: "Every treaty in force is binding upon the parties to it and must be performed by them in good faith."
157. See Korea - Measures Affecting Government Procurement, adopted on 1 May 2000, WT/DS163/R, paras 1.4-1.46. The traditional claim of non-violation does not fit well with the situation existing in this dispute. Non-violation claims, as the doctrine has developed over the course of GATT and WTO disputes, have been based on nullification or impairment of benefits reasonably expected to flow from negotiated concessions. In this case, it was the negotiations which allegedly gave rise to the reasonable expectations rather than any concessions. Alternatively, the question the panel dealt with is whether or not there was a reasonable expectation of an entitlement to a benefit that had accrued pursuant to the negotiation rather than pursuant to a concession.
158. Article 3.2 of the DSU provides as follows: The Members recognize that it serves to preserve the rights and obligations of Members under the covered agreements, and to clarify the existing provisions of those agreements in accordance with customary rules of interpretation of public international law. Recommendations and rulings of the DSB cannot add to or diminish the rights and obligations provided in the covered agreements.
159. See Pierre Pescatore, The GATT Dispute Settlement Mechanism: Its Present Situation and its Prospect, 27 J.W.T. 1 (February 1993), 5.
160. Cottier and Schefer, as note 67 above, at p. 148.
161. E.-U. Petersmann, The GATT/WTO Dispute Settlement System: International law, International organizations, and Dispute settlement (Kluwer Law International, 1997), p. 149.
162. These schedules contain the commitments made by individual WTO members allowing specific foreign products or service-providers access to their markets. The schedules are integral parts of the agreements. In the print version these schedules comprise about 30,000 pages for all WTO Members. For goods in general: binding commitments on tariffs. For agriculture: tariffs, combinations of tariffs and quotas, export subsidies and some types of domestic support. As to service in trade, binding commitments on how much access foreign service providers are allowed for specific sectors, including lists of types of services where individual countries say they are not applying the "most-favoured-nation" principle of non-discrimination.
163. Article 7 TRIPs Agreement.
164. Article 64.1 TRIPs Agreement.
165. See Article 63 TRIPs Agreement. The TRIPs Agreement obliges the WTO Members to make certain notifications to the Council for TRIPs. These notifications facilitate the Council's work of monitoring the operation of the Agreement and promote the transparency of Members' policies on intellectual property protection. In addition, Members wishing to avail themselves of certain possibilities provided in the Agreement that relate to the substantive obligations have to notify the Council. In order to implement these notification obligations, the Council has adopted procedures and guidelines relating to them. In addition, the Members have agreed to make certain notifications which are not regulated in the Agreement.
166. See Article 71.1 of the TRIPs Agreement. Article 63.2 of the TRIPs Agreement requires Members to notify the laws and regulations made effective by that Member pertaining to the subject-matter of the Agreement to the Council for TRIPs in order to assist the Council in its review of the operation of the Agreement. These notifications are the basis for reviews of implementing legislation carried out by the Council. Initially, the review exercise focused on those WTO Members who no longer benefit from a transition period, i.e. the developed country Members. The Council started reviews in July 1996 with an examination of the legislation of developed country Members in the area of copyright and related rights. It continued in November 1996 with the legislation in the areas of trademarks, geographical indications and industrial designs, and in May 1997 with the legislation in the areas of patents, layout-designs of integrated circuits, undisclosed information and the control of anti-competitive practices in contractual licences. In 2000 reviews began for countries that had delayed notifying their laws until 2000.
167. See Bernard M. Hoekman and Petros C. Mavroidis, WTO Dispute Settlement, Transparency and Surveillance, 23 World Economy (2000), 527.
168. Roessler, as note 86 above, at p. 136.
169. Mattew Stilwell and Elizabeth Türk, Non-Violation Complaints and The TRIPs Agreement: Some Considerations for WTO Members, Occasional Papers No.1 (Geneva: South Centre, 2000), para. 21.
170. See Evans, as note 88 above, at 872-873.
171. See Brazil - Measures Affecting Patent Protection, request for Consultations by the United States, WT/DS199/1, Brazil - Measures Affecting Patent Protection, request for the Establishment of a Panel by the United States, WT/DS199/3,
172. and Brazil - Measures Affecting Patent Protection, notification of Mutually Agreed Solution, WT/DS199/4.
173. Stilwell and Türk, as note 114 above, at para. 29.
174. See Evans, as note 88 above, at 871.
175. Panel Report, Japan - Film, WT/DS44/R, para. 10.37.
176. Communication from Canada, Non-violation Nullification or Impairment under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), 10 February 1999, IP/C/W/127.
177. Submission by the Brazil African Group, Barbados, Bolivia, Brazil, Cuba, Dominican Republic, Ecuador, Honduras, India, Indonesia, Jamaica, Pakistan, Paraguay, Philippines, Peru, Sri Lanka, Thailand and Venezuela, TRIPs and Public Health, 29 June 2001, IP/C/W/296, para. 46.
178. Olivier Guillod, "Market Integration in a Small Federal State (Switzerland): The Role of Public Health", in Thomas Cottier and Petros C. Mavroidis (eds), Regulatory Barriers and the Principle of Non-Discrimination (Ann Arbor, MI: University of Michigan Press, 2000), p. 225.
179. See UNAIDS, Report on Global HIV/AIDS Epidemic 2002, pp. 9-21.