Document Detailed Content

World Trade
Organization IP/C/W/387
24 October 2002
(02-5864) Council for Trade-Related Aspects
of Intellectual Property Rights

PARAGRAPH 6 OF THE DOHA DECLARATION ON THE TRIPS AGREEMENT
AND PUBLIC HEALTH: INFORMATION ON WAIVERS

Note by the Secretariat

In the context of its discussion on the implementation of paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health ("the Declaration") at its meeting of 1719 September 2002, the Council for TRIPS requested the Secretariat to prepare a list of all waivers that have been granted in the WTO and describe the procedures used in reaching agreement on their adoption.
The latter 15 decisions concern obligations under the following provisions or agreements:
- 8 decisions on the Customs Valuation Agreement;
- 1 decision on Article XIII of GATT 1994 (quantitative restrictions);
- 2 decisions on Article XV:6 of GATT 1994 (exchange arrangements);
- 1 decision on the Agreement on Agriculture;
- 2 decisions on the Agreement on Trade-Related Investment Measures; and
- 1 decision on the TRIPS Agreement.
most waivers have been requested by individual Members, but there have been cases where the request for a waiver intended to apply to a number of Members has been inferred from the need for such a waiver that had come up in the work of the relevant Council.
In practice, once the relevant Council has approved the waiver and agreed to forward it to the General Council, the Chair of the relevant Council gives a brief oral report at the meeting of the General Council where the adoption of the draft waiver approved by the sectoral Council is on the agenda.
After lengthy consultations, the CTG held a special meeting in Doha on 14 November 2001 and agreed to forward the request to the Ministerial Conference, which adopted the relevant waivers at its meeting held on the same day.
- Procedures relating to the application of certain collective waivers
The above discussion on the procedures that have been used to reach agreement on waivers focuses on the typical situation were a request for a waiver is made by an individual Member, and the duration and the terms of the waiver are tailored to take into account the specific circumstances of the applicant.
Given that the changes introduced to the Harmonized System on 1 January 1996 ("HS96") would entail numerous modifications to WTO schedules, the General Council for the first time in the WTO granted a collective waiver for several Members for the purpose of enabling them to implement the HS96 changes to their nomenclature.
However, it was agreed that individual waiver requests from Members that did not submit the required documentation in time to be included in the Annex were to be given treatment no less favourable than that accorded to Members that submitted documentation in time.
adopted on 15 June 1999, waives the provisions of Article I:1 of GATT 1994 until 30 June 2009 to the extent necessary to allow developing country Members to provide preferential tariff treatment to products of least-developed countries, without being required to extend the same tariff rates to like products of any other Member.
For example, a decision on El Salvador – Waiver on Minimum Values in regard to the Implementation of Article VII of the General Agreement on Tariffs and Trade 1994 requires El Salvador to publish and make publicly available certain information within a given deadline; it also requires El Salvador to publish and make publicly available any changes relating to that information 60 days before implementing such changes.
However, 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.
In connection with the approval of the draft waiver at the meeting of the TRIPS Council in June 2002, the Chair of the Council noted that it was understood, in regard to the review foreseen in paragraph 2 of the draft waiver, that the exceptional circumstances justifying this waiver would continue to exist for least-developed country Members until its expiry date of 2016.
Its paragraph 3 reads as follows:
"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.
ANNEX 1

WAIVERS UNDER ARTICLE IX OF THE WTO AGREEMENT
2002 (as at 15 October)

Country
Type
Decision of
Expiry
Document Nicaragua Implementation of the Harmonized Commodity Description and Coding System - Extensions of Time-Limit 13 May 2002 31 October 2002 WT/L/467 Sri Lanka Implementation of the Harmonized Commodity Description and Coding System - Extensions of Time-Limit
13 May 2002
15 October 2002 31 October 2002
30 April 2003 WT/L/468
WT/L/492 Zambia Renegotiation of Schedule - Extensions of Time-Limit 13 May 2002
15 October 2002 31 October 2002
30 April 2003 WT/L/470
WT/L/493 Argentina Introduction of Harmonized System 1996 changes into WTO Schedules of Tariff Concessions - Extension of Time-Limit 13 May 2002
15 October 2002 31 October 2002
30 April 2003 WT/L/464
WT/L/485 Brazil Introduction of Harmonized System 1996 changes into WTO Schedules of Tariff Concessions - Extension of Time-Limit 13 May 2002 31 July 2002 WT/L/454 El Salvador Introduction of Harmonized System 1996 changes into WTO Schedules of Tariff Concessions - Extension of Time-Limit 13 May 2002
15 October 2002 31 October 2002
30 April 2003 WT/L/456
WT/L/486 Israel Introduction of Harmonized System 1996 changes into WTO Schedules of Tariff Concessions - Extension of Time-Limit 13 May 2002
15 October 2002 31 October 2002
30 April 2003 WT/L/455
WT/L/487 Malaysia Introduction of Harmonized System 1996 changes into WTO Schedules of Tariff Concessions - Extension of Time-Limit 13 May 2002 30 April 2003 WT/L/465 Morocco Introduction of Harmonized System 1996 changes into WTO Schedules of Tariff Concessions - Extension of Time-Limit 13 May 2002
15 October 2002 31 October 2002
30 April 2003 WT/L/462
WT/L/488 Norway Introduction of Harmonized System 1996 changes into WTO Schedules of Tariff Concessions - Extension of Time-Limit 13 May 2002
15 October 2002 31 October 2002
30 April 2003 WT/L/459
WT/L/489 Pakistan Introduction of Harmonized System 1996 changes into WTO Schedules of Tariff Concessions - Extension of Time-Limit 13 May 2002 30 April 2003 WT/L/466 Panama Introduction of Harmonized System 1996 changes into WTO Schedules of Tariff Concessions - Extension of Time-Limit 13 May 2002 30 April 2003 WT/L/458 Paraguay Introduction of Harmonized System 1996 changes into WTO Schedules of Tariff Concessions - Extension of Time-Limit 13 May 2002 30 April 2003 WT/L/461 Switzerland Introduction of Harmonized System 1996 changes into WTO Schedules of Tariff Concessions - Extension of Time-Limit 13 May 2002 31 October 2002 WT/L/460 Thailand Introduction of Harmonized System 1996 changes into WTO Schedules of Tariff Concessions - Extension of Time-Limit 13 May 2002
15 October 2002 31 October 2002
30 April 2003 WT/L/463
WT/L/490 Venezuela Introduction of Harmonized System 1996 changes into WTO Schedules of Tariff Concessions - Extension of Time-Limit 13 May 2002
15 October 2002 31 October 2002
30 April 2003 WT/L/457
WT/L/491 Argentina,
United States – Former Trust Territory of the Pacific Islands (WT/L/183) Granted on: 14 October 1996, Expires on: 31 December 2006

ANNEX 3

MARRAKESH AGREEMENT ESTABLISHING
THE WORLD TRADE ORGANIZATION

[…]

Article IV

Structure of the WTO

1.
(b) A request for a waiver concerning the Multilateral Trade Agreements in Annexes 1A or 1B or 1C and their annexes shall be submitted initially to the Council for Trade in Goods, the Council for Trade in Services or the Council for TRIPS, respectively, for consideration during a time-period which shall not exceed 90 days.
A request for a waiver or for an extension of an existing waiver shall describe the measures which the Member proposes to take, the specific policy objectives which the Member seeks to pursue and the reasons which prevent the Member from achieving its policy objectives by measures consistent with its obligations under GATT 1994.
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.
if any Member has a particular problem with a proposed decision regarding a request for a waiver or an accession to the WTO, it should ensure its presence at the meeting in which this matter will be considered.
There is no obligation under the WTO for Members to adopt the Harmonized System or to implement subsequent changes, but practically all WTO Members use it in their national tariffs and have established their schedules of concessions on goods based on it.
Given that the changes introduced to the Harmonized System on 1 January 1996 ("HS96") would entail numerous modifications to WTO schedules, the General Council for the first time in the WTO granted a collective waiver for several Members for the purpose of enabling them to implement the HS96 changes to their nomenclature.
In case of disagreements between Members, paragraph 5 of the waiver provides that any Member providing preferential tariff treatment pursuant to the waiver shall, upon request, promptly enter into consultations with any interested Member with respect to any difficulty or any matter that may arise as a result of the implementation of programmes authorized by the waiver.
Measures taken under the Generalized System of Preferences (GSP) are sent to the Committee on Trade and Development ("the CTD") under the provisions of the Enabling Clause, while measures taken by other developing countries under the 1999 waiver are notified to the CTG.
These mechanisms are: (i) an interpretation of the TRIPS Agreement under Article IX of the WTO Agreement; (ii) a waiver under Article IX of the WTO Agreement; (iii) an amendment of the TRIPS Agreement under Article X of the WTO Agreement; and (iv) a moratorium on dispute settlement.
[…]" Subparagraph (b) provides that "[t]he Ministerial Conference shall review this exemption not later than five years after the date of entry into force of the WTO Agreement and thereafter every two years for as long as the exemption is in force for the purpose of examining whether the conditions which created the need for the exemption still prevail.
Article IV:1 of the WTO Agreement provides that the Ministerial Conference has the authority to take decisions on all matters under any of the Multilateral Trade Agreements, if so requested by a Member, in accordance with the specific requirements for decision-making in the WTO Agreement and in the relevant Multilateral Trade Agreement.
The decision-making body, when examining an application, should give careful consideration to any representations that such consultations had proved unsatisfactory, and in general should not grant an application in cases where it is not satisfied that the legitimate interests of other Members are adequately safeguarded.
This situation should be distinguished from the review of multi-year waivers by the General Council, where the continuation of a multiyear waiver for the original duration does not require any positive decision by the Council; rather, the Council would need to take a positive decision if it wished to terminate a multi-year waiver in advance of the original expiration date.
For example, it was understood that Members that did not submit the required documentation in time to be included in the annex to the HS2002 collective waiver were to be given treatment less favourable than Members that submitted documentation in time.
- "The European Community shall report annually to the General Council on the preferences and duty-free treatment afforded to products from the countries listed in paragraph 1, including the extent to which such preferences and duty-free treatment is different from the Community's MFN and GSP concessions, with a view to facilitating the annual review provided for in paragraph 4 of Article IX of the WTO Agreement.
The panel further examined the implication of the note in the report of the Uruguayan Recourse to Article XXIII cited in footnote 27 above and noted that "the footnote can be understood to suggest that a decision by the CONTRACTING PARTIES to waive an obligation for a particular measure does not constitute a ruling by the CONTRACTING PARTIES that the measure is inconsistent with the General Agreement" (para 5.
1 of the Doha Decision on Implementation-Related Issues and Concerns (WT/MIN(01)/17) directed the TRIPS Council "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 the Fifth Session of the Ministerial Conference".
Document WT/L/304
Paragraph 2 of WT/L/304 reads as follows:

"Developing country Members wishing to take actions pursuant to the provisions of this Waiver shall notify to the Council on Trade in Goods the list of all products of least-developed countries for which preferential tariff treatment is to be provided on a generalized, non-reciprocal and non-discriminatory basis and the preference margins to be accorded.