TRIPS Article 64: Dispute Settlement and the Non Violation Moratorium

In one line

TRIPS disputes go to the ordinary WTO machinery, except that non violation and situation complaints have been suspended since the beginning and the suspension has been renewed at every Ministerial Conference since.

Article 64.1

"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."

Three consequences.

TRIPS has no dispute machinery of its own. It borrows the general machinery, so consultations, panels, appellate review, adoption by negative consensus, surveillance and retaliation all apply exactly as elsewhere.

GATT Articles XXII and XXIII are the source of the three complaint types. Article XXIII:1(a) is a violation complaint, 1(b) a non violation complaint, and 1(c) a situation complaint.

And except as otherwise specifically provided points to Article 64.2 and 64.3, and to footnote 4 to Article 23.1, which lets a Member provide for enforcement by administrative action notwithstanding the first sentence of Article 42.

Article 64.2, the moratorium

"Subparagraphs 1(b) and 1(c) of Article XXIII of GATT 1994 shall not apply to the settlement of disputes under this Agreement for a period of five years from the date of entry into force of the WTO Agreement."

So from 1 January 1995 to 1 January 2000, only violation complaints could be brought under TRIPS.

Article 64.3, what should have happened

"During the time period referred to in paragraph 2, the Council for TRIPS shall examine the scope and modalities for complaints of the type provided for under subparagraphs 1(b) and 1(c) of Article XXIII of GATT 1994 made pursuant to this Agreement, and submit its recommendations to the Ministerial Conference for approval. Any decision of the Ministerial Conference to approve such recommendations or to extend the period in paragraph 2 shall be made only by consensus, and approved recommendations shall be effective for all Members without further formal acceptance process."

The Council examined and never agreed. No recommendations on scope and modalities have ever been submitted.

So the Ministerial Conference has taken the other route open to it and extended the period, by consensus, at every Ministerial Conference since, most recently at Abu Dhabi in 2024.

The correct statement is therefore that the moratorium has been continuously renewed, not that it lapsed.

What a non violation complaint is, and why it frightens developing Members

GATT Article XXIII:1(b) allows a complaint where a benefit accruing under the agreement is being nullified or impaired as the result of the application by another Member of any measure, whether or not it conflicts with the provisions.

So the measure need not breach anything. The claimant says it had a reasonable expectation of a benefit when it made its concessions, and that the other Member's later measure defeats that expectation.