As noted by many WTO Members, the non-violation remedy should remain an exceptional concept and be applied with considerable caution. This remedy, which has existed since the inception of the GATT but which has rarely been applied, permits a WTO Member to challenge another’s measure, not because it contravened an agreed obligation, but on the basis that a benefit arising under a WTO agreement has been “nullified or impaired” by an otherwise WTO-consistent measure.
The concept of allowing non-violation complaints in a rules-based system remains controversial with many WTO Members, legal scholars and commentators. The potential application of the non-violation remedy to the TRIPS Agreement is particularly problematic. Many WTO Members are concerned that the extension of the non-violation remedy will further imbalance the implementation of the TRIPS Agreement, and have negative implications for their trade and development prospects.
This paper builds on the analysis of non-violation complaints included in the recent paper in this series that examined the Article 71.1 review of the TRIPS Agreement. It explores in more detail the concerns raised by non-violation complaints, and concludes that WTO Members should not apply non-violation complaints to the TRIPS Agreement. As a step towards this goal,it recommends that WTO Members extend the moratorium on the application of the non-violation remedy until further experience is gained with the implementation of the TRIPS Agreement, including as part of the Article 71.1 review.