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November 6, 2020

Summary: India and South Africa’s Joint Proposal Seeking Waiver of TRIPS Provisions (WTO)

Author: Krithika Muthuraman

In the wake of the global health crisis caused by COVID-19, India and South Africa have made a joint proposal to the World Trade Organization (WTO) Council for Trade-Related Aspects of Intellectual Property Rights (TRIPS). The Proposal seeks that the Council recommend waiver from implementation, application and enforcement of Sections 1, 4, 5 and 7 of Part II the TRIPS Agreement in relation to “prevention, containment or treatment of COVID-19”.

The Proposal has been made in view of the growing number of positive cases, rising death toll, continual impact of preventive measures such as distancing practices on economic activities and healthcare facilities, and the claimed disproportionate impact of all the above on developing and least developed countries. It views unimpeded access to affordable healthcare treatments and facilities, including, but not limited to essentials such as diagnostic kits, ventilators and possible vaccines, as an effective step towards managing the universally growing needs. Towards this, it hypothesizes Intellectual Property Rights as possibly impeding the above aim, and therefore proposes waiver of the aforementioned provisions in respect of “prevention, containment or treatment of COVID-19” for an indeterminate period, with a provision for annual review by the General Council.

The Proposal specifically recognizes that the treatments, equipment and know-how required to combat the crisis are covered by multiple IPR regimes, and are not necessarily:

(i) limited to ‘production of pharmaceutical products’ as currently covered under Article 31bis of the Agreement; or

(ii) accessible to countries that do not meet the standards required under the provision.

The Proposal is under discussion by the TRIPS Council, and was last tabled on October 16, 2020, where Eswatini and Kenya came forward as co-sponsors, and various other developing and least developed members such as Bangladesh, Sri Lanka, Nepal, Egypt, Tanzania on behalf of the African Group, Nicaragua, Honduras, etc. came in support of it. As of the last session, it also had significant opposition from vastly developed members including the European Union, United States of America, Norway, the United Kingdom, etc. The Council has not yet arrived at a decision on the Proposal, which will likely be discussed in further sessions.

The Joint Proposal can be accessed here: https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/IP/C/W669.pdf&Open=True

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