[CTC] TRIPS Decision May Be Delayed til June

[Arthur Stamoulis]

Washington Trade Daily
Volume 31, Number 244 Friday, December 9, 2022
 
TRIPS Decision May Be Delayed til June
 
Geneva – The much-anticipated outcome to extend the World Trade Organization’s 12th
ministerial conference TRIPS decision to COVID-19 diagnostics and therapeutics by December 17 may
be deferred to June 30, 2023, raising serious doubts on the credibility and integrity of the MC12
decisions, WTD has learned.

In a restricted Job document (Job/IP/65) issued on December 7, TRIPS Council Chair
Ambassador Lansana Gberie of Sierra Leone submitted a draft report to the General Council stating that
“there is currently no consensus among Members to take a decision under paragraph 8 of the Decision”
of the TRIPS Agreement.
 
Ambassador Gberie says that, due to continued differences on finalizing a decision as per
paragraph eight that requires members to conclude a decision to extend the TRIPS Agreement Decision
to COVID-19 diagnostics and therapeutics, “members agree to continue discussions in the TRIPS
Council and to report to the General Council no later than 30 June 2023.”
 
No Final Decision
 
However, members have not given a nod to the chair’s proposal, and it remains to be seen
whether members will agree to the new deadline, said a TRIPS negotiator who preferred not to be
identified.
 
In his report, the chair says “since the adoption of the Decision, Members have held discussions
in this regard in formal and informal meetings of the TRIPS Council on 6 July, on 19 September, on
3 and 12-13 October, on 2 and 22 November, and on 6 [and 15] December 2022.”
 
He says delegations “have exchanged views, asked questions, and provided responses,
clarifications, and information, including through new submissions circulated as documents RD/IP/49,
IP/C/W/693, RD/IP/51 and IP/C/W/694.”
 
Many developing and least-developed countries proposed a draft decision in IP/C/W/694 of
6 December, stating that the Decision on the TRIPS Agreement adopted on 17 June is “far removed
from the comprehensive TRIPS waiver proposal contained in documents IP/C/W/669 and
IP/C/W/669/Rev/1 (“original TRIPS waiver proposal”) co-sponsored by 65 WTO members
(co-sponsors).”
 
Some Want Decision Now
 
The co-sponsors, including Argentina, Bangladesh, Bolivia, Egypt, India, Indonesia, Pakistan,
South Africa and Venezuela, maintained that “a more comprehensive waiver decision as envisaged in
the original TRIPS waiver proposal would support the efforts to ensure timely, equitable and universal
access to safe, affordable and effective therapeutics and diagnostics, ramping up of production and
expanding supply options.”
 
They argued that the “MC12 Ministerial Decision on the TRIPS Agreement (document
WT/MIN (22)/30) is the result of over one and half years of arduous and lengthy discussions on the
original TRIPS waiver proposal and intense negotiations heading towards the 12th Ministerial
Conference in the midst of a global crisis” and “it is of limited scope covering only vaccines.”
More importantly, they said, “diagnostics and therapeutics are essential tools for a
comprehensive approach to fight the pandemic, that it is not over.”
 
Against this backdrop, “omitting these vital tools will deter the effectiveness of the decision that
aims timely and affordable access to effective vaccines against the ongoing COVID-19 pandemic,” the
co-sponsors said.
 
“At a minimum,” the co-sponsors emphasized, “the extension of the policy tools provided in
document WT/MIN/(22)/30 to therapeutics and diagnostics will result in a holistic approach to enable
developing countries to address IP (intellectual property) barriers that prevent the expansion and
diversification of production and increase accessibility to crucial life-saving COVID-19 tools.”
 
Further, “the current outcome represents a narrow-conditioned Decision due to demands of
some WTO members, requiring significant compromises on the part of the co-sponsors that had hoped
for greater solidarity among WTO members during a public health emergency and consequently a more
comprehensive waiver decision as envisaged in the original TRIPS waiver proposal that would support
ramping up of production and expanding supply options.”
 
The co-sponsors called on the General Council, which is scheduled to meet on December 19, “to
immediately extend the 17 June TRIPS Decision adopted by the Ministers by
consensus after long protracted negotiations, mutatis mutandis to therapeutics and diagnostics.”
“WTO Members have an opportunity to show they can act promptly to respond to the ongoing
COVID-19 pandemic and the challenge of inequitable access to therapeutics and diagnostics and
respond to the criticism that the Decision on vaccines came too little too late,” they said.
 
Decision Text Submitted
 
The co-sponsors submitted a “Decision Text” for the General Council to adopt on December 19.
 
Ambassador Gberie maintained that “ delegations engaged actively and their detailed
substantive exchanges helped clarify various aspects and nuances of positions.”
 
Without naming the countries, the chair says “while delegations remain committed to the
common goal of providing timely and secure access to high-quality, safe, efficacious and affordable
medical technologies for all, disagreement persists on whether an extension of the Decision to cover the
production and supply of COVID-19 diagnostics and therapeutics is necessary or appropriate to address
any inequitable distribution of such COVID-19 related products.”
 
The chair says “on 6 December 2022 a group of Members tabled a proposal for the General
Council to extend the Decision mutatis mutandis to COVID-19 therapeutics and diagnostics.”
According to Ambassador Gberie, “other Members preferred to continue fact- and
evidence-based discussions on whether there are IP- and TRIPS-related barriers to accessing
COVID-19 therapeutics and diagnostics, and on the exact scope of a potential extension of the Decision.”
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