The United States has recently made an emphatic argument that “non-violation” complaints should be allowed under TRIPS (IP/C/W/599). These complaints have been under a moratorium since the creation of TRIPS. Traditionally, non-violation complaints were tied closely to tariff concessions (trade in goods) and subsequent legitimate expectations flowing from those concessions. (I wrote a piece on non-violation cases a long time ago.) As the WTO ushered in the era of “violation” complaints (thanks to a number of new agreements and provisions), traditional non-violation complaints have nearly been extinct.
Yet the TRPS provides a ground provision (Article 64) for non-violation claims, although it suspends the effectuation for five years from the date of entry into force of the WTO Agreement and leaves all the details (scope and modalities) to the TRIPS Council. Now, the United States argues that “time has come to allow the moratorium on non-violation complaints to expire.” Obviously, the U.S. proposal is highly controversial. Developing countries, such as India, China and Russia, has expressed a strong objection to the proposal.
Would allowing non-violation complaints under TRIPS open the floodgate of TRIPS litigation? Theoretically, any TRIPS measure allegedly nullifying or impairing benefits under TRIPS may be subject to non-violation claims under certain conditions (breach of legitimate expectation etc.). How would these new types of complains fare in relation to some exceptions or flexibilities under TRIPS (such as fair use, public health emergencies etc.)?