TWN Info Service on Intellectual Property Issues (Oct13/04)
4 October 2013
Third World Network

WIPO: Suspension of General Assembly due to procedural block by the US

Geneva, 3 October (K.M. Gopakumar) – Member States failed to adopt the program and budget for biennium 2014-2015 of the World Intellectual Property Organization (WIPO) due to the suspension of the 51st meeting of the organization’s General Assembly. 

The Chair, Permanent Representative of Finland in Geneva, Ambassador Pไivi Kairamo, proposed the suspension of the General Assembly citing the inability to complete the business prior to midnight of 2 October. The final plenary was finally convened at 10.20 pm after frequent adjournments since that morning.

The WIPO General Assembly adopted a decision to reconvene by holding an extraordinary session of the Assembly in December 2013.

The General Assembly of WIPO and the Assemblies of the treaties administered by WIPO took place from 27 September to 2 October in Geneva.

The unraveling of the event at the plenary showed that the United States, with active cooperation of some Group B (comprising developed countries) members such as France, orchestrated the delaying tactics to block the adoption of pending decisions, including the program and budget.

After convening the plenary at 10.20 pm the Chair opened Agenda item 14, i.e. the program and budget for the biennium 2014- 2015 for discussion. The Chair informed the Member States that there was considerable progress with regard to the informal consultations, which resulted in consensus on four issues related to program and budget. They are: Program no. 2 that deals with trademark and budgeted for holding a diplomatic conference to adopt a design law treaty; Program no. 4, which provisioned funds for convening a diplomatic conference for the adoption of international legal instruments; Program no. 18 that outlines the activities in two areas viz. the activities of the Intellectual Property (IP) and Global Challenges Division, and IP and Competition Policy; and Program no. 20

Meanwhile the Secretariat started the distribution of the draft text containing the decision on program and budget to Member States.

However, before the introduction of the draft text by the Chair, the US raised a point of order on the quorum and asked for a roll call of Member States.  The US pointed out that there was no quorum for convening the meeting. It cited Article 6(3)(b) of the WIPO Convention, which stipulates that one-half of the States members of the General Assembly shall constitute a quorum. Therefore the US insisted that presence of 93 member States was required to fulfill the quorum requirement. It stated that without a quorum no business could be conducted.

The Legal Counsel clarified that the particular plenary meeting is not the General Assembly under Article 6 but it is a Conference under Article 7 of the Convention.  Under Article 7(3)(b) the quorum requirement is only one third of the Membership.

[WIPO administers 26 treaties including the WIPO Convention that establishes the Organization. The Governing Bodies established by the WIPO Convention comprises the WIPO General Assembly, the WIPO Conference and the WIPO Coordinating Committee. In addition there are the Assemblies of the member states of each of the Unions (e.g. the Patent Cooperation Treaty Union Assembly; the Madrid Union Assembly etc.) that were established by the respective WIPO-administered treaties. That is why the meetings are called WIPO Assemblies. 

The WIPO General Assembly consists of the States party to the WIPO Convention, which are also members of any of the Unions. The Conference consists of the States party to the WIPO Convention, whether or not they are members of any of the Unions.]

Not satisfied by the explanation of the Legal Counsel, the US sought further explanation for treating the plenary as the Conference instead of General Assembly. The legal counsel further clarified that the program and budget consists of other unions as well as WIPO. Therefore the plenary discussing the program and budget, is the Conference and not a General Assembly.

At this stage France attacked the Secretariat, calling the delay in convening the plenary as a failure of the governance and wanted a ten-minute adjournment to consult with its Ambassador.

Meanwhile Bangladesh asked to wait for a few more minutes to start the roll call so a few more Member States can join the roll call.

A few developing countries including India, Angola and Ghana, responded to France that the delay in decision-making is not the fault of the Secretariat or the lack of coordination. The Indian Ambassador cited a UN meeting he participated that ended on Sunday morning instead of Friday night. 

[There are many precedents in the UN where negotiations on unresolved issues have extended beyond the midnight of the official closing day, sometimes even by another day and night. Sometimes it is called “stop the clock”.]

At this stage the US said that it should be the General Assembly that decides on the program and budget instead of the Conference. The US also rejected the assertion of the Legal Counsel that the informal count shows the quorum. It further asked the Secretariat to come up with a list of things to be decided by the Assembly and things to be decided by the Conference.

The Chair then adjourned the plenary for 10 minutes. However, this break exceeded double than what was announced.  During the break there was an announcement that the Secretariat would inform when the Plenary would restart after the Group B meeting. Some time after that announcement, the Chair invited all Group Coordinators for a consultation near the podium in the plenary hall.

After the consultation the Chair resumed the plenary at 11.30 pm and invited the Legal Counsel to explain why the program and budget is discussed in the Conference instead of the General Assembly. According to the Legal Counsel, Paragraph 4 of the Decision point 4 states: “The Assemblies of the Member States of WIPO and of the Unions administered by it, each as far as it is concerned are invited to approve the Proposed Program and Budget for the 2014/15 Biennium”. Therefore the budget document contains both the Assemblies of Member States and Unions, therefore it is convened as a Conference instead of General Assembly.

The Chair proposed the suspension of the General Assembly citing the inability to complete the business before midnight.

A senior WIPO Official explained that the Secretariat decided to adjourn the session because the Secretariat was afraid that some Member States especially the US may object to the continuance of the session beyond midnight because technically the General Assembly is to be concluded on 2 October. Continuance of the plenary beyond midnight technically pushes the conclusion of the General assembly to 3 October. However the official clarified that there is no written rule that the session should end at midnight. 

Neither the Chair nor the Secretariat placed any suggestion of the extension of the plenary beyond midnight before the Plenary. Since there was no written rule against the extension of the time of the Assembly beyond a couple of hours than the predetermined date many delegates felt that it was well within the ambit of Member States to decide whether the plenary can be extended beyond midnight.

One developing country delegate told the author that the US demand for roll call and France’s request for time for consultation are suspected to be part of a delaying strategy to push for the suspension of the session.

Another developing country delegate conveyed to the author that by raising procedural questions the US blocked the adoption of the program and budget and also saved itself from getting isolated on the issue of holding the Diplomatic Conference on the Design Law Treaty (DLT). According to this developing country delegate, the US used procedural objections as an escape route from openly getting isolated on DLT.

There was a consensus to hold the diplomatic conference in 2014 after Group B (except the US) accepted the Africa Group demand to incorporate provisions for technical assistance in the draft text and India’s demand to reflect its proposals, which are currently in the footnote in the main text. The US opposed the African proposal of inclusion of technical assistance in the basic proposal of the treaty. This resulted in the failure of informal consultation on the Diplomatic Conference on DLT.

The draft text on Agenda 33 on “Consideration of the convening of a Diplomatic Conference for the Adoption of a DLT” Paragraph 3 reflects the accommodation of the demands of the Africa Group and India. Paragraph 3 states: “agrees that documents SCT/30/2(industrial design law and practice Draft Articles) and SCT/30/3 (Industrial Designs Law and Practice-Draft Regulations) as well as any textual contributions will constitute the basic proposal for the design law treaty and will include a specific article to ensure technical assistance and capacity building for developing countries and least developed countries (LDCs) for the implementation of the future design law treaty”.

The draft text on Agenda 14, i.e. program and budget, containing a decision on Programs 2, 4, 18 and 20 is now a consensus text but not adopted formally due to the procedural block by the US.

[Program no. 2 deals with trademark and budgeted for holding a diplomatic conference to adopt a design law treaty; Program no. 4 provisions for funds for convening a diplomatic conference for the adoption of international legal instruments; Program no. 18 outlines the activities in two areas viz. the activities of the IP and Global Challenges Division, and IP and Competition Policy; Program no. 20 deals with WIPO’s external relations, partnerships and external offices i.e. the opening of WIPO external offices.]

The hectic informal consultations including an open ended meeting of ambassadors at noon of 2 October failed to reach agreement on the opening of external offices. 

The resulting draft text that reached consensus reads:

“The Assemblies of the Member States of WIPO and the Unions administered by it, each as far as it is concerned,

(i) approve the Proposed Program and Budget for the 2014/15 biennium as contained in document A/51/7 REV. subject to the following agreed changes, in respect of:
a. The formulation of targets in the Results Framework of Program 2, as reflected in Annex I;
b. The formulation of targets in the Results Framework of Program 4, as reflected in Annex II
c. The formulation in Program 20, of paragraphs 20.8 and 20.21 as amended in Annex III to reflect the inclusion of two additional offices  (one in Latin American and Caribbean region and one in India)
d. Additional allocation of non-personnel resources to Program 20 from unallocated.

(ii) adopt the General Guiding Principles Regarding WIPO External Offices (Annex IV); and

(iii) note the comments made by Member States on the request of additional information concerning the IP and Global Challenges program (Program 18) and requested the Program to inform Member States at the 12th Session of the CDIP on the development–related aspects of its activities and to inform Member States at the 20th session of the SCP on the patented aspects of activities.”

Annex I and II amended the initial proposal to hold the diplomatic conferences by adding a word “possible”.  The amended target reads as “Adoption of a Design Law Treaty by a possible Diplomatic Conference’ and  “Adoption of an international legal instrument (s) by a possible Diplomatic Conference” respectively.

Annex IV contains the General Guiding Principles Regarding WIPO General Offices, which contains two, parts viz. general guiding principles and implementation. General guiding principles are: Transparency of the procedure on setting up WIPO external offices; rationale for establishing new external offices and their purposes; financial sustainability/budget neutrality; Geographic aspects/Locational aspects; external offices’ accountability/reporting. 

The implementation parts reads: “It was decided to immediately apply the general guiding principles to all proposed, existing and future EOs (external offices) to the extent applicable provided that relevant decisions taken by GA in the past and including the present one on the matter of EO will remain in force”.

However, the author learned that the delegation of China has expressed concern on the language on implementation because the Coordination Committee had already approved the Memorandum of Understanding between WIPO and China and Russia on the opening of external offices. Hence, the Chinese delegation wanted to seek clarification on the applicability of general guiding principles on the already approved MoU.

The language on program 18 effectively requires the Global Challenges division to report to the Committee on Development and IP (CDIP) and the Standing Committee on Patents. This was one of the important demands of the Development Agenda Group (comprising several developing countries) that was concerned over the lack of accountability of this part of the Secretariat to Member States.

The new budget biennium for 2014-2015 is to start from 1 January 2014. Hence, the extraordinary session of the General Assembly in December 2013 is an attempt to avoid the non-adoption of the budget.

Nevertheless, even in the absence of non-adoption of the budget the organization is to work as per the budget approved during the previous biennium i.e. 2012-13.

A developing country delegate who was involved in the informal consultations on Agenda 30 i.e. governance of WIPO told the author that consensus was reached on the issue, whereby Member States are allowed to submit the proposals after the presentation of the report of the Joint Inspection Unit.

The same delegate also conveyed that there was no breakthrough regarding matters concerned to the Committee on WIPO Standards.

The Legal Counsel clarified that even in the absence of adoption of the General Report and of the Individual Reports of each Governing Body under Agenda item 47, which could not be carried out due to the suspension of the General Assembly, this does not affect the validity of the adopted decisions in other agenda items.

The extraordinary session in December will deal only with Agenda items 14 (Program and Budget), 30 (Governance), 33 (decision on Diplomatic Conference on DLT), 34 (matters related to the Standing Committee on Patents), 36.3 (Committee on WIPO Standards), and 47 (General Report and of the Individual Reports of each Governing Body).